Prestige Bus Company Ltd & another v Omondi (Civil Appeal E004 of 2025) [2026] KEHC 12713 (KLR) (6 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E004 OF 2025** **PRESTIGE BUS COMPANY LIMITED 1ST APPELLANT** **GAKUYO REAL ESTATE LIMITED 2ND APPELLANT** **VERSUS** **GERALD OWITI OMONDI RESPONDENT** *(Being an appeal from the judgment and decree of the Honourable J. A. Agonda, Principal Magistrate, delivered on 21st January 2025 in Vihiga Principal Magistrate's Court Civil Suit No. 125 of 2019 — Gerald Owiti Omondi versus Prestige Bus Company Limited and Gakuyo Real Estate Limited)* **Coram: Before Justice R. Nyakundi** **M/S Kimondo Gachoka & Co. Advocates** **M/S Ngala Awino & Co. Advocates** **JUDGMENT** # **INTRODUCTION** 1. This is a first appeal from the judgment of the Principal Magistrate's Court at Vihiga in Civil Suit No. 125 of 2019, by which the learned trial Magistrate found the Appellants jointly and severally liable in negligence to the extent of one hundred per cent and awarded the Respondent Kshs. 250,000 as general damages, together with the costs of the suit and interest at Court rates from the date of judgment. 2. The claim arose out of a road traffic accident which the Respondent alleged occurred on 13th June 2019 at Shamakhokho along the Kapsabet–Chavakali road, in which motor vehicle registration number KCP 083V, an Isuzu bus, lost control and overturned. The Respondent's case was that he was a lawful fare-paying passenger in that bus and was injured. The Appellants' case, as it was ultimately advanced, was not merely that no negligence was proved but that the Respondent was never in the bus at all and that his claim was a fabrication. 3. That contention, whether the claim is genuine, is the true centre of gravity of this appeal, and it is where I shall spend most of the analysis herein under: # **THE CASE BEFORE THE TRIAL COURT** 1. By a plaint filed on 26th July 2019, the Respondent sued both Appellants, pleading that the 1st Appellant was the actual owner and the 2nd Appellant the registered owner of motor vehicle registration number KCP 083V. He pleaded that on 13th June 2019 he was travelling aboard that vehicle along the Kapsabet–Chavakali road when it was so negligently, carelessly or recklessly driven by the Appellants' driver, servant or agent that it lost control and overturned at Shamakhokho, whereby he suffered severe bodily injuries. Seven particulars of negligence were pleaded, and eight particulars of injury: tenderness and bruising of the left ear; a swollen and bruised head; neck tenderness; backache; chest tenderness; a swollen and dislocated left index finger; tenderness and bruising of the right shoulder and elbow joints; and tenderness and bruising of the knee joints and legs. He prayed for general damages, costs and interest. He did not plead special damages 2. By a statement of defence dated 18th August 2019, the Appellants denied the claim in its entirety. They denied that the 1st Appellant was the owner of the vehicle; denied the occurrence of the accident as pleaded; denied every particular of negligence; and denied the injuries. In the alternative they pleaded contributory negligence, with five particulars, together with *volenti non fit injuria* and inevitable accident, and they denied the applicability of *res ipsa loquitur*. 3. Two features of that pleading call for notice at this stage. The first is that the particulars of contributory negligence are drawn in the feminine — an allegation that the Respondent failed to apply a seatbelt "for her own safety" and distracted the driver "by engaging him in endless banter" — which suggests a formulaic pleading not adapted to the facts of this case. The second, and far more important, is that nowhere in the statement of defence is there any allegation of fraud, forgery, fabrication, or that the Respondent's documents were unlawfully procured. That case first appears, so far as the record discloses, in a supplementary list of documents dated 26th October 2022 listing a "Revocation letter dated 08/04/2020", and thereafter in evidence and in submissions. The defence was never amended. # **THE EVIDENCE AT THE TRIAL** 1. The Respondent called three witnesses. The Appellants called one. 2. PW1, Gerald Owiti Omondi, adopted his statement dated 24th July 2019 as his evidence in chief and produced his documents as Plaintiff's Exhibits 1 to 6: his national identity card, the police abstract, the P3 form, the discharge summary together with the interim invoice and patient release letter from Vihiga County Referral Hospital, the demand letter dated 25th June 2019, and a copy of records from the Registrar of Motor Vehicles. He testified that he was admitted in hospital for two days and blamed the driver for driving recklessly. 3. In cross-examination he gave his identity card number, confirmed 13th June 2019 as the date of the accident, and stated that he had no receipt for the fare. He said he was seated in the middle of the vehicle and could not see the front because the bus was full; that the police arrived at the scene and took the injured to hospital; and that he could not say how long they took because he was unconscious. He was confronted with the letter from Vihiga Police Station stating that the records under OB No. 13 had been perused and that he did not appear there. His answer was direct: it was untrue that he was not involved. He added that he had not healed, still felt pain in the chest, hands and legs, and was still undergoing treatment, though he had brought no further treatment documents. In re-examination he confirmed that he was in the vehicle, was injured, was treated and discharged after two days, and was issued with a Police Abstract and a P3 form. 4. PW2, George Mwaita, a Senior Clinical Officer at Ahero Hospital, testified that on 5th July 2019 he examined the Respondent, who had been involved in a road traffic accident on 13th June 2019 and had been treated at Vihiga County Referral Hospital, having been admitted and discharged on 14th June 2019. He found bruises on the left ear and the head, backache, chest pains, a swollen and dislocated left index finger, and bruises on the shoulder, elbow and knee joints. He prescribed analgesics and physiotherapy and completed the P3 form on 5th July 2019. He said he also relied on the treatment notes from Vihiga County Referral Hospital. He produced the P3 form and the hospital documents as Plaintiff's Exhibits 3 and 4. 5. In cross-examination PW2 said that he is a Clinician and not a Doctor; that the P3 form originated from Vihiga Police Station and he completed it at Ahero, some distance away; that he was unaware that the P3 form had been revoked; and that the Respondent had sustained a minor head injury. He said he conducted physiotherapy and noted a dislocation which could be detected without X-rays, that he has twelve years' experience, and that the Respondent would by then have healed. 6. PW3, No. 104937 Police Constable Mutunga, attached to the traffic Department at Vihiga Police Station, produced the police abstract issued by that Station in respect of an accident which occurred on 13th June 2019 in which motor vehicle KCP 083V, an Isuzu bus, lost control and fell, the Respondent having boarded that vehicle and sustained injuries, and having been issued with a P3 form and a police abstract. She named PC Mwinzi as the Investigating Officer, who had since been transferred. 7. PW3 dealt candidly with the difficulty in the Respondent's case. She told the Court that the Respondent's name did not appear in the Occurrence Book, although there were several entries. She said she was aware of the letter dated 8th April 2020 and of what had led the Base Commander to write it, and that the letter emanated from Vihiga Police Station. Her evidence, however, was that the omission was not the Respondent's fault; that where there are many injured persons a name may be left out; that it was the duty of the officer to capture the name and ensure that it was entered in the Occurrence Book; and, in terms, that the police took responsibility for the omission. She noted that the letter was handwritten rather than typed and that its author had not come to Court. In re-examination she repeated that the Respondent was involved in the accident but his name was omitted, and that this was not his fault. 8. DW1, No. 59708 Corporal John Koech, also attached to Vihiga Police Station on traffic duties, testified that an accident occurred at 6.00 a.m. involving motor vehicle KCP 083V, an Isuzu bus belonging to the 1st Appellant, which was being driven from Nairobi to Kakamega and which lost control and landed in a ditch on reaching Shamakhokho. The passengers sustained injuries and the police at the scene came with a list of the injured. He said the Respondent was not among them, his name not appearing in the Occurrence Book. He produced the letter of the Base Commander dated 8th April 2020 as Defence Exhibit 1, over the objection of Counsel for the Respondent, the trial Court having ruled that as PW3 and DW1 were from the same station the Court would consider their evidence. 9. In cross-examination DW1 made a series of important concessions. He was not the Investigating Officer; PC Mwinzi was. He did not visit the scene of the accident. He had not produced Occurrence Book No. 13 in Court. His position was that he had the authority of the Base Commander to produce the letter. In re-examination he said that he had perused the Occurrence Book and the police file, and the defence case was closed. # **THE JUDGMENT APPEALED AGAINST** 1. The learned trial Magistrate framed five issues: ownership of the vehicle; whether an accident occurred on 13th June 2019 involving KCP 083V and the Respondent as a lawful fare-paying passenger; who was to blame and to what degree; the injuries and the appropriate quantum; and costs. 2. On ownership he relied on the copy of records, Plaintiff's Exhibit 6, and found the issue in the affirmative. On the occurrence of the accident he observed that PW1 and DW1 were at one that the accident occurred at Shamakhokho along the Kapsabet–Chavakali road when the vehicle lost control and overturned, and found that issue in the affirmative also. 3. On liability he applied *Embu Public Road Services Limited v Riimi [1968] EA 22,* holding that where an accident occurs and no explanation is given by the Defendant which could exonerate him, the Court is at liberty to apply *res ipsa loquitur*. He reasoned that a passenger who boards a vehicle expects to be carried safely to his destination; that the Respondent did not arrive safely; and that had the bus been carefully driven it would not have overturned. 4. On the contest about the Occurrence Book, the learned Magistrate held that DW1 testified on the basis of the Occurrence Book but neither produced an extract of it nor led the Court through it; that DW1 was not the Investigating Officer, did not visit the scene, did not prepare or complete the abstract, and carried out no investigation to establish fraud, relying entirely on records availed to him. He characterised DW1's testimony as hearsay and uncorroborated. He further held that the unilateral revocation of the abstract was unlawful and malicious, no proper investigation having been carried out and the Investigating Officer not having been consulted, and that the Respondent had been denied an opportunity to be heard. Having had the advantage of seeing the demeanour of the witnesses, he preferred the Respondent's evidence, which he described as overwhelming, to what he called the stand-alone evidence of the defence, and found the medical evidence uncontroverted. 5. He accordingly held the Appellants jointly and severally liable to the extent of one hundred per cent. On quantum, having referred to an authority in which an award of Kshs. 300,000 for soft tissue injuries and a dislocation was upheld on appeal, and to *Pitalis Opiyo Ager v Daniel Otieno Owino and Another [2020] eKLR*, in which an award of Kshs. 200,000 was upheld for chest injuries and a dislocation of the small toe, and taking into account inflationary trends, the nature of the injuries and the general trend of awards, he assessed general damages at Kshs. 250,000. He declined to award special damages, none having been pleaded or proved. # **THE APPEAL** 1. The memorandum of appeal dated 5th February 2025 raises four grounds. In summary, it is said that the learned Magistrate erred: in awarding Kshs. 250,000 as general damages without considering the circumstances of the case; in misdirecting himself as to the extent and value of the Respondent's injuries and thereby in his assessment of damages, the treatment notes having been flagged as not genuine; in failing to consider the evidence tendered by the Appellants; and in failing to consider the Appellants' submissions and authorities, arriving at an unjustified decision on quantum. The Appellants pray that the appeal be allowed, the decree set aside, that this Court re-evaluate the evidence and determine whether the claim is genuine, and that they have the costs of the appeal. 2. In their written submissions dated 4th May 2026 the Appellants contend that the Respondent failed to prove that he was a passenger in KCP 083V; that DW1 produced a verification letter stating that he had not issued the Respondent with an abstract or a P3 form, and a letter revoking the abstract; that the Respondent was not listed in the Occurrence Book; that no independent witness was called to support his account; and that the documents produced were illegally obtained and the claim fraudulent. They invoked Sections 108 and 109 of the Evidence Act and *Eastern Produce (K) Limited v Christopher Atiado Osiro, Eldoret High Court Civil Appeal No. 43 of 2001*, citing *Kiema Mutuku v Kenya Cargo Hauling Services Limited [1991] 2 KAR 258* for the proposition that there is as yet no liability without fault in Kenya and that a Plaintiff must prove some negligence where the claim is founded on negligence. 3. For the Respondent it is submitted that the award was not inordinately high and does not meet the threshold in *Kemfro Africa Limited t/a "Meru Express Services (1976)" and Another v Lubia and Another* (No. 2); that the trial Court considered the evidence of both sides, as the judgment itself demonstrates; that DW1 admitted he was not the investigating officer, did not visit the scene and did not produce the Occurrence Book; and that PW3 confirmed the Respondent's involvement and explained that the omission of his name was the fault of the duty officer. The Respondent prays that the appeal be dismissed with costs. # **PRELIMINARY OBSERVATIONS ON THE RECORD** 1. Three matters of form may be disposed of shortly. First, the suit number is given variously in the record as Vihiga PMCC No. 125 of 2019 and as PMCC No. E125 of 2019, and this appeal is cited both as Civil Appeal No. E04 of 2025 and as Civil Appeal No. E004 of 2025. The correct references are Vihiga Principal Magistrate's Court Civil Suit No. 125 of 2019 and this Civil Appeal No. E004 of 2025. The variations are clerical and have misled nobody. 2. Secondly, the memorandum of appeal refers throughout to "the Appellant" in the singular although there are two Appellants, and it was drawn by one firm while the submissions were filed by another sharing the same address. Neither circumstance affects the competence of the appeal, and no objection was taken. 3. Thirdly, judgment was delivered on 21st January 2025 and the memorandum of appeal was filed on 6th February 2025, well within time. The appeal is properly before me. 4. A fourth matter is of substance rather than form and I record it here because it recurs below. The record refers to the police witness called by the Respondent as PW3 and, in one place in the proceedings, gives her first name as Patrick, while the Plaintiff's submissions, the trial judgment and the Appellants' own submissions all refer to her as PC Damaris Mutunga and to her in the feminine. Her force number, No. 104937, is constant throughout. I am satisfied that these references are to one and the same officer, and I refer to her simply as PW3 or as PC Mutunga. # **THE DUTY OF THIS COURT ON A FIRST APPEAL** 1. In a first appeal this Court is under a duty to reconsider the evidence tendered before the trial Court, to evaluate it afresh and to draw its own conclusions, always bearing in mind that it neither saw nor heard the witnesses and must make due allowance in that respect: *Selle and Another v Associated Motor Boat Company Limited [1968] EA 123; Peters v Sunday Post Limited [1958] EA 424*. The power is conferred by Section 78 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and was restated in *Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212*, upon which the Appellants themselves rely. 2. The correlative restraint is equally settled. In *Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982–88) 1 KAR 278* the Court of Appeal held that a first appellate Court will hesitate before reversing findings of fact, and will do so only where the trial Court failed to take account of particular circumstances or probabilities, or where the impression based on the demeanour of a witness is inconsistent with the evidence generally. In *Abok James Odera t/a A. J. Odera and Associates v John Patrick Machira t/a Machira and Company Advocates [2013] eKLR*the Court restated the obligation to subject the whole of the evidence to a fresh and exhaustive scrutiny. 3. That restraint has real work to do in this appeal. The determination under challenge turned substantially upon the trial Court's assessment of two competing bodies of evidence about the same event, given by two Police Officers from the same Station, and upon its appraisal of the credibility of the Respondent when his honesty was squarely put in issue. The learned Magistrate expressly recorded that he had the advantage of seeing the demeanour of the witnesses. I have not. I have accordingly examined the record with care to see whether the conclusion he reached is one that the evidence, objectively assessed, could support, and whether he misdirected himself in law. # **ISSUES FOR DETERMINATION** 1. The issues which arise are: 2. Whether the Respondent proved, on a balance of probabilities, that he was a passenger in motor vehicle registration number KCP 083V on 13th June 2019 and was injured in the accident of that date — that is to say, whether the claim is genuine; 3. If so, whether the learned trial Magistrate was right to hold the Appellants liable in negligence to the extent of one hundred per cent; 4. Whether the award of Kshs. 250,000 as general damages is one with which this Court ought to interfere; 5. Whether the trial Court failed to consider the Appellants' evidence, submissions and authorities; and 6. Who should bear the costs. # **WHETHER THE CLAIM IS GENUINE** ## ***(i) How the issue arises, and on whom the burden lies*** 1. The burden of proving that he was a passenger in the bus and was injured lay, and remained throughout, upon the Respondent. Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya, place it there, and nothing that the Appellants did or failed to do could shift it. To that extent the Appellants' submission is unimpeachable, and the authorities they cite — *Eastern Produce (K) Limited v Christopher Atiado Osiro* and, within it, *Kiema Mutuku v Kenya Cargo Hauling Services Limited [1991] 2 KAR 258* — correctly state the law. 2. But the Appellants did not confine themselves to putting the Respondent to proof. They advanced a positive case of their own: that the abstract and the P3 form were illegally obtained, that they were null and void, and that the claim is fraudulent. Their submissions to this Court put it in terms, urging that the suit be dismissed "for being fraudulent". An allegation of that character carries its own consequences in pleading and in proof, and it is convenient to deal with those first. 3. It is elementary that fraud must be specifically pleaded and particularised. Order 2 Rule 10 of the Civil Procedure Rules, 2010 so requires. *In Vijay Morjaria v Nansingh Madhusingh Darbar and Another [2000] eKLR*the Court of Appeal held that it is settled law that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading, the acts alleged to be fraudulent being set out and then stated to be fraudulent. In *Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR* the Court held that fraudulent conduct must be distinctly alleged and distinctly proved, and that it is not allowable to leave fraud to be inferred from the facts. 4. The standard of proof is also higher than the ordinary civil standard. In *Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314* it was held that allegations of fraud must be strictly proved, and that although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. 5. The statement of defence in this case pleads no fraud at all. It does not allege that the abstract or the P3 form was forged, procured by deceit, or otherwise unlawfully obtained. It does not allege that the Respondent was never in the vehicle; it puts him to strict proof that he was. The Appellants were content to introduce the revocation letter through a supplementary list of documents filed more than three years after the defence, and to make their case in evidence and submissions. They cannot in those circumstances ask this Court, or the Court below, to find fraud established. It was not open to the trial Court to make such a finding, and it is not open to me. 6. I should not be understood as saying that the Appellants were thereby disabled from challenging the Respondent's account. They were entitled, as any Defendant is, to test his evidence and to invite the Court to disbelieve him. The distinction matters because it determines what has to be shown. The question is not whether the Appellants proved fraud — they did not plead it and so cannot — but whether, on the whole of the evidence, the Respondent discharged the ordinary civil burden of proving that he was in the bus and was hurt. I turn to that question. ## ***(ii) The Occurrence Book*** 1. The Appellants' case stands or falls on the proposition that the Respondent's name is absent from the Occurrence Book at Vihiga Police Station. That proposition was advanced by two routes: the oral evidence of DW1 and the letter of the Base Commander. 2. The first and most striking feature of the record is that the Occurrence Book was never produced. It was listed in the Appellants' own list of documents, both in the original list of 18th August 2019 and again in the supplementary list of 26th October 2022, on each occasion described as the "Police File/OB". It was never tendered. DW1, a serving officer of the very station which holds it, was asked in cross-examination and confirmed that he had not produced Occurrence Book No. 13 in Court 3. The Evidence Act requires that the contents of a document be proved by production of the document itself, secondary evidence of its contents being admissible only in the excepted cases for which the Act provides. No attempt was made to bring this case within any of those exceptions. The Appellants asked the trial Court, and now ask this Court, to find as a fact that a name does not appear in a book which neither Court has seen, on the strength of the assertion of a witness who was not the author of the book, who did not make the relevant entries, who was not at the scene, and who was not the Investigating Officer. 4. That is a considerable thing to ask. It is the more considerable because the document was, on the Appellants' own case, within the control of their witness's employer and had been in their contemplation since 2019. Where a party asserts the contents of a document which it is uniquely placed to produce, and does not produce it, a Court is entitled to weigh that omission. I do not need to go so far as to draw an adverse inference. It is enough to say that the assertion, unsupported by the document, was of slight probative value, and the learned trial Magistrate was entitled so to treat it. 5. There is a further difficulty with DW1's evidence which appears not to have been pressed below but which is plain on the record. His account of the date and time of the accident was that it occurred on 14th June 2019 at 6.00 a.m., and he identified the relevant entry as Occurrence Book No. 13 of 14th June 2019. Every other source in the case, including the letter which he himself produced, places the accident on 13th June 2019, that letter recording in terms that the accident "occurred on 13/06/2019" and was reported under OB 13. A witness whose central evidence is that a particular name is missing from a particular entry, and who is mistaken about which day that entry concerns, does not inspire confidence. ## ***(iii) The letter of 8th April 2020*** 1. The letter produced as Defence Exhibit 1 is on the letterhead of Vihiga Police Station and is dated 8th April 2020. It is addressed not to the Court, nor to the Respondent, but to the Managing Director of Directline Assurance Company Limited. It opens by referring to that company's own letter of the same date. It states that the records of the accident of 13th June 2019, reported under OB 13, had been perused, that the Respondent was not involved as he does not appear in the Occurrence Book, and that any P3 form and police abstract issued to him are null and void and cannot be used as proof of involvement. It bears the stamp and signature of the Base Commander. 2. Three things follow. The first is that the Base Commander who wrote the letter never came to Court. His assertion that he perused the records and that a particular name was not there is, in the mouth of DW1, an assertion of the truth of what another person said out of Court. Whether it is labelled hearsay or characterised as secondary evidence of the contents of a document, the vice is the same: the maker was not before the Court, was not on oath, and could not be cross-examined about how thorough his perusal was, whether he considered the possibility of omission, or on what basis he pronounced documents issued by his own station to be void. PW3 made the point herself when she observed that the letter was handwritten rather than typed and that its author had not come to Court. 3. The second is that the letter was written on the same day as, and expressly in answer to, an inquiry from an insurance company. That does not make it worthless, but it does mean that it was not the product of any independent police investigation into a suspected false claim. No file was opened. No statement was taken from the Respondent. The Investigating Officer, PC Mwinzi, was not consulted so far as the record shows. Nobody was charged. DW1 confirmed that he carried out no investigation of his own. 4. The third is that the letter purports to nullify documents on which a citizen's claim depends, without notice to him and without any opportunity for him to be heard. The learned trial Magistrate was troubled by this, and Article 47 of the Constitution, which guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, lends his concern support. 5. I must, however, part company with the learned Magistrate in one respect. He went on to find that the revocation was "unlawful and malicious". That was, with respect, a step too far. The Base Commander was not a party to the suit, gave no evidence, and had no opportunity to answer an allegation of malice; and no such case was pleaded against him. A finding of malice against a public officer who is not before the Court and who has not been heard should not be made. I set that finding aside. What survives, and what is sufficient, is the narrower and unimpeachable proposition that the letter was untested, that its author was not called, and that it could not by itself displace sworn evidence given in Court and subjected to cross-examination. 6. I would add, for completeness, that the learned Magistrate's use of the word "hearsay" to describe DW1's evidence as a whole was not entirely apt, since DW1 also gave direct evidence of matters within his own knowledge. But the substance of the criticism — that the material parts of his evidence depended on documents he did not produce and on a letter he did not write — was sound, and the conclusion drawn from it was correct. ## ***(iv) The evidence of PW3*** 1. Against the letter stood the sworn testimony of PC Mutunga, an Officer of the very same station, who produced the Police Abstract, told the Court that the Respondent was involved in the accident, and explained the absence of his name from the Occurrence Book as an error of the duty officer for which the police accepted responsibility. She was not the Appellants' witness, but neither was she a witness with any personal stake in the outcome. She was cross-examined, and her account was not shaken. 2. It is important to be precise about what she said, because the Appellants' submissions to this Court do not accurately reflect it. Those submissions assert that PW2, PC Mutunga, "confirmed that she was aware of the letter revoking the Abstract and that there was no further OB listing the Respondent as having been among those injured", and conclude that "both witnesses for the Appellant and Respondent confirmed that the Respondent was never involved in the accident by virtue of not being listed in the OB". 3. That is not what the Officer said. She agreed that the name was not in the Occurrence Book, and she agreed that she was aware of the letter. She did not agree that the Respondent was never involved. On the contrary, she said the opposite, twice: in cross-examination, that it was not the Respondent's fault that his name did not appear and that it was the duty of the Officer to capture it; and in re-examination, that the Respondent was involved in an accident but his name was omitted, and that this was not his fault. To convert an admission that a record is incomplete into a confirmation that an event never occurred is to mistake the absence of evidence for evidence of absence. The submission cannot be accepted. 4. The learned Magistrate was therefore confronted with two Officers of the same station giving evidence which pointed in opposite directions. One had produced the document on which the Respondent relied and vouched for his involvement; the other produced a letter written by a Superior he had not written and an Occurrence Book he had not brought. Faced with that, and having seen both witnesses, the Magistrate preferred the former. That was a conclusion open to him on the evidence, and it is not one with which an appellate Court which has seen neither witness should lightly interfere. ## ***(v) The documentary corroboration*** 1. The Respondent's case did not rest on the abstract alone. He produced, as Plaintiff's Exhibit 4, the discharge summary, interim invoice and patient release letter from Vihiga County Referral Hospital. PW2 confirmed that the Respondent had been admitted there and discharged on 14th June 2019, the day after the accident, and that he had relied on the hospital's treatment notes in completing the P3 form. 2. That is contemporaneous documentation, generated by a public hospital, in the immediate aftermath of the accident and long before any dispute arose. It was produced in evidence. It was never suggested to PW1 or to PW2 that it was forged, and no application was made to have it examined. The letter of 8th April 2020 does not touch it: what that letter purported to nullify was the P3 form and the police abstract, not the hospital records. 3. It follows that the second ground of appeal, which asserts that the learned Magistrate misdirected himself as to the extent and value of the injuries because "the treatment notes were flagged as not genuine", proceeds on a false premise. Nothing in the record flags the treatment notes as anything. The ground fails on the facts. 4. There is a further point, that the Appellants listed Dr. Jenipher Kahuthu among their witnesses in 2019. No medical evidence was called on their behalf. The Respondent was never examined by a doctor of their choosing. The medical evidence of PW2, and the hospital records, therefore stood uncontradicted by any competing medical opinion. 5. As to the absence of a fellow passenger and of a bus ticket, on which the Appellants place weight: Section 143 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. A passenger in a full public service vehicle, thrown into a ditch and rendered unconscious, is not to be expected to have preserved a ticket or to be able to name the strangers seated beside him. Their absence is a matter going to weight and not a bar. ## ***(vi) David Ngare t/a Prestige Buses v Benson Omollo Okumu*** 1. The Appellants relied below, and rely again, on the decision of this Court in Vihiga High Court Civil Appeal No. 27 of 2022, David Ngare t/a Prestige Buses v Benson Omollo Okumu, delivered on 24th July 2024. That case arose out of the very same accident: the same date, the same place and the same vehicle, KCP 083V. That the Court allowed the appeal, holding that the claim had not been proved and was not genuine. The decision plainly deserves careful attention, and I have given it careful attention. 2. A decision of a Court of coordinate jurisdiction is of high persuasive value and should be followed unless the Court is satisfied that it is distinguishable or was wrongly decided. I do not consider that decision to have been wrongly decided. I consider it to be distinguishable, and materially so, in four respects. 3. First, and most importantly, the reasoning in that case turned on a specific and demonstrated discrepancy in the Occurrence Book references. The Court found that the abstract relied on by the Plaintiff there bore OB No. 7/13/6/2019, which related not to any accident but to an Officer being sent to Kisumu, whereas the accident was recorded under OB No. 13/13/6/2019. The Court described that discrepancy as the clearest evidence causing it to doubt the authenticity of the claim. In the present case no such discrepancy was demonstrated. The Occurrence Book was not produced at all, and no evidence was led that the abstract issued to this Respondent bore a reference unconnected with the accident. 4. Secondly, in that case the treatment notes were marked for identification but were never produced, and the Court held that this was crucial because the Plaintiff's involvement was hotly contested and the treatment notes were the primary documents from which all the others derived. In the present case the hospital documents were produced and admitted as Plaintiff's Exhibit 4. That is precisely the gap which the Court there identified as fatal, and it is filled here. 5. Thirdly, in that case the Plaintiff said he had reported the accident at Kaimosi Police Station and failed to call any evidence from that station, the Court holding that he was obliged to do so. Here the Respondent reported at Vihiga Police Station, and an Officer of that station attended Court, produced the abstract and testified to his involvement. 6. Fourthly, and decisively, the police evidence in that case pointed one way. Both officers agreed that the Plaintiff's name was not in the Occurrence Book and that the Occurrence Book he relied on did not relate to the accident. Here PW3 went considerably further than agreeing that a name was missing: she affirmed the Respondent's involvement and attributed the omission to police error, accepting institutional responsibility for it. There was no such evidence in the earlier case. 7. Each case must be decided on its own evidence. That thirty-odd passengers were injured in a single bus and that one claim arising from that accident has been found wanting does not establish that another is. The earlier decision does not govern this appeal. ## ***(vii) Conclusion on the first issue*** 1. Standing back and weighing the whole of the evidence, the position is this. The Respondent gave sworn evidence that he was a passenger and was injured, and maintained it under cross-examination. He produced a police abstract, and the officer who produced it in Court affirmed his involvement. He produced contemporaneous hospital records showing admission and discharge on the day following the accident. A clinical officer of twelve years' experience examined him three weeks later and found injuries consistent with the accident. Against that, the Appellants produced a letter written by an officer who did not testify, at the request of an insurer, asserting the contents of a book which was never brought to Court, spoken to by a witness who was not the Investigating Officer, did not visit the scene, and was mistaken as to the date of the accident. 2. The learned trial Magistrate, who saw the witnesses, was satisfied that the Respondent had proved his case. On the evidence on this record I am satisfied that he was entitled to be. I would go further and say that on the material before him no other conclusion was reasonably open. The first ground on which the appeal is put, that the claim is not genuine, fails. # **LIABILITY** 1. Given that finding, the question of liability admits of a short answer. 2. The occurrence of the accident is not in dispute. DW1 himself told the Court that the bus was being driven from Nairobi to Kakamega and that on reaching Shamakhokho it lost control and landed in a ditch, injuring passengers. That was a self-involving accident. No other vehicle, no third party and no external agency was suggested. 3. A public service vehicle being driven with reasonable care upon a highway does not, in the ordinary course of things, lose control and overturn into a ditch. Where it does, and the Defendant offers no explanation consistent with the absence of negligence, the Court may draw the inference which the facts naturally yield. That is the effect of *Embu Public Road Services Limited v Riimi [1968] EA 22,* upon which the learned Magistrate relied and which he applied correctly. 4. The Appellants called no evidence at all touching the manner of driving. They did not call the driver, whose identity was known to them. They did not call the conductor. They did not suggest mechanical failure and produced no inspection report. The plea of inevitable accident, having been pleaded, was simply abandoned. So too were the pleas of contributory negligence and *volenti non fit injuria*, in support of which not a word of evidence was led. 5. The issue of liability is at the center of compensation in Road’s Traffic Accident Claims, this is all about the tort of negligence. The guiding principles are explicit in the following extract from the Digest on Civil Case Law and procedure 3rd Edition Volume 9 by GV Odunga now a Judge of Appeal in which the following observations were made: *The doctrine of res ipsa loquitor is one which a Plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the Defendant, the original burden of showing negligence on the part of the person who caused the accident. The Plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the Defendant. The Defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence of his part; or that the accident was due to the circumstances not within his control. The mere showing that the accident occurred by reason of a skid is not sufficient since a skid is something which may occur by reason of negligence or without negligence, and in the absence of evidence showing that the skid did not arise through negligence the explanation that the accident was caused by a skid does not rebut the inference of negligence drawn from the circumstances of the accident. See Menezes v Stylianides Ltd, civil appeal number 46 of 1962(UR); Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392; Hunterv Wright [1938] 2 All ER 621; Laurie v Raglan Building Co Ltd [1941] 3 AllER 332; Stoomvaart Maatschappy Nederland v P and O Navigation Co (1880)5 App.Cas.876.* *Where the circumstances of the accident give rise to the inference of negligence the Defendant in order to escape liability has to show “that there was a probable cause of the accident which does not connote negligence" or "that the explanation for the accident was consistent only with an absence of negligence. “When a man is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much. See Stoomvaart Maatschappy Nederland v P & O Navigation Co [1880]5 App. Cas. 876.* 1. *Where the thing is shown to be under the management of the Defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management us proper care, it affords reasonable evidence in the absence of explanation by the Defendant that the accident arose for want of care. See Cassidy v Ministry of Health [1951] 2 Kb 343 at 353.* 2. The facts of this case are very clear from the record of the trial Court in relation with liability for negligence which is the basis upon which the claimant sued the Respondent. It is clear from the record as the issues raised on appeal in this appeal were duly adjudicated by the Trial Court and determined with completeness and conclusively so with regard to causation issues which give rise to liability. The standard and burden of proof in cases of this nature does shift to the Defendant/Respondent to rebut the chain of events as to the proximate cause of the accident in which he is being held liable for damages. 3. In motor accident claims as stipulated in Kenya legal system, it has been held over and over again establishing negligence is on a standard of preponderance of probability rather that proof beyond doubt. Some discrepancies in the evidence of the Plaintiff or claimant testimony his/her witness mighty have occurred at the trial but the core question before the trial Court and consequently before this High Court is whether the motor vehicle in question was involved in the accident or not. For the purpose of determining the said issue the Court was required to apply the principles underlying the burden of proof in terms of Section 107 (1) of the Evidence Act. This is the bone of contention which governs the tort of negligence and the assessment on damages. 4. As to ownership, the Respondent produced a copy of records from the Registrar of Motor Vehicles, Plaintiff's Exhibit 6, and the 2nd Appellant appears on it. As to the 1st Appellant, whose ownership was denied in the defence, the point was proved out of the Appellants' own mouth: DW1 testified that the Isuzu bus KCP 083V belonged to the 1st Defendant. A party can hardly complain that a fact it denied was established by its own witness. The finding of joint and several liability against both Appellants was correct. 5. An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an "accident". But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident. 6. I therefore uphold the finding of liability at one hundred per cent. # **QUANTUM** 1. The principles governing appellate interference with an award of general damages are not in dispute and were correctly identified by the Respondent. In *Kemfro Africa Limited t/a "Meru Express Services (1976)" and Another v Lubia and Another (No. 2) [1985] eKLR* the Court of Appeal held that an appellate Court must be satisfied either that the trial Court, in assessing 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 high or so inordinately low that it must be a wholly erroneous estimate of the damage. To like effect is ***Butt v Khan [1981] KLR 349***. 2. The threshold is deliberately high. It is not enough that this Court, had it been trying the matter at first instance, might have arrived at a different figure. The assessment of general damages is a matter of discretion, and an appellate Court does not substitute its own discretion for that of the trial Court merely because it would have exercised it differently. 3. The injuries proved were the eight pleaded and confirmed by PW2: tenderness and bruising of the left ear, a swollen and bruised head, neck tenderness, backache, chest tenderness, a swollen and dislocated left index finger, tenderness and bruising of the right shoulder and elbow joints, and tenderness and bruising of the knee joints and legs. They are, in substance, soft tissue injuries together with one dislocation. The Respondent was admitted at Vihiga County Referral Hospital and discharged the following day. PW2 conceded in cross-examination that the head injury was minor and that the Respondent would by the time of trial have healed. 4. The Respondent sought Kshs. 400,000 below, relying on Odinga *Jactone Ouma v Moureen Achieng Odera [2016] eKLR* for the proposition that comparable injuries should attract comparable awards. The Appellants, in their submissions before the trial Court, proposed no figure of their own, contenting themselves with the contention that liability was not established. That was a forensic choice they were entitled to make, but it left the trial Court without any comparator advanced on their behalf. 5. The learned Magistrate did not simply pluck a figure from the air. He identified two comparators, one in which an award of Kshs. 300,000 for soft tissue injuries and a dislocation had been upheld on appeal, and *Pitalis Opiyo Ager v Daniel Otieno Owino and Another [2020] eKLR,* in which an award of Kshs. 200,000 had been upheld for chest injuries and a dislocation. He expressly took into account inflationary trends, the nature of the injuries and the general trend of awards for similar injuries. He then settled on a figure between his two comparators. That is an orthodox and properly reasoned exercise. 6. The Appellants have not identified any irrelevant factor which the learned Magistrate took into account, nor any relevant factor which he left out. Their real complaint is that the figure is too high. Having regard to the nature of the injuries, to the fact that the accident occurred in June 2019 and the award was made in January 2025, and to the range disclosed by the comparators, I am unable to say that Kshs. 250,000 is so inordinately high as to represent a wholly erroneous estimate of the damage. It sits at the upper end of a defensible range, but it sits within it. 7. The first ground of appeal accordingly fails. # **WHETHER THE TRIAL COURT FAILED TO CONSIDER THE APPELLANTS' CASE** 1. The third and fourth grounds allege a failure to consider the evidence tendered by the Appellants and a failure to consider their submissions and authorities. 2. These grounds are not made out and, with respect, ought not to have been advanced. The judgment devotes the greater part of a page to DW1's evidence. It summarises his evidence in chief. It records the production of Defence Exhibit 1. It sets out, in detail, his concessions in cross-examination. It gives express reasons — right or wrong — for rejecting his account. The judgment also records in terms that the trial Court gave due consideration to the written submissions filed by Counsel for the parties and to the authorities relied upon. 3. A complaint that a Court failed to consider a party's case is not established by showing that the Court rejected it. These grounds fail. # **A CONCLUDING OBSERVATION** 1. Insurers and transport operators face a real and well-documented problem of fabricated claims arising out of public service vehicle accidents, and Courts should be astute to detect them. Nothing in this judgment should be read as diminishing that. But the way to meet such a claim is to plead the allegation, to particularise it, to investigate it, and to prove it by admissible evidence — by producing the Occurrence Book, by calling the officer who made or omitted the entry, by calling the author of any letter relied upon, and by putting the allegation squarely to the claimant in cross-examination so that he may answer it. None of that was done here. A letter obtained from a police station at the request of an insurer, produced by an officer who did not write it, in support of the contents of a book which was never brought to Court, is not a substitute for proof. # **DISPOSITION** 1. For the reasons set out above, the appeal fails. I make the following orders: 1. *The appeal is dismissed.* 2. *The judgment and decree of the Principal Magistrate's Court at Vihiga in Civil Suit No. 125 of 2019, delivered on 21st January 2025, is upheld, save that the finding at page 4 thereof that the revocation of the police abstract was "malicious" is hereby set aside for the reasons given at paragraph 48 above, that finding being unnecessary to the decision and made against an officer who was not before the Court.* 3. *The Appellants shall jointly and severally pay the Respondent the costs of this appeal, to be taxed if not agreed.* 4. *The costs and interest awarded by the Trial Court shall stand.* 5. *The file in Vihiga Principal Magistrate's Court Civil Suit No. 125 of 2019 shall be remitted to that Court for execution.* 6. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. NYAKUNDI** **JUDGE**