Muthoni alias Sarafina Muthoni Ngugi v Mburu (Civil Appeal E085 of 2023) [2026] KEHC 7674 (KLR) (26 May 2026) (Judgment)

Muthoni alias Sarafina Muthoni Ngugi v Mburu (Civil Appeal E085 of 2023) [2026] KEHC 7674 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7674 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E085 of 2023 DKN Magare, J May 26, 2026 Between Sarafina Muthoni alias Sarafina Muthoni Ngugi Appellant and Saimon Kuruma Mburu Respondent Judgment 1.This is an appeal from the Judgment and decree of Hon. E.W. Wambugu (PM) at Kandara delivered on 13.10.2023. The appellant was the defendant in the lower court. The appeal is both on quantum and liability. The court below entered judgment for the Respondent against the appellant as follows:a.Liability 100%b.General damages Ksh. 900,000/=c.Future medical expenses Ksh. 40,000/=d.Special damages Ksh. 24,360/=Total Ksh. 964,360/= 2.The appellant was aggrieved and raised the following grounds of appeal:a.That the learned trial magistrate proceeded on wrong principles in entering judgment for the Respondent for the sum of Kshs. 900,000/- in general damages;b.That the learned trial magistrate erred in failing to scrutinize/evaluate the evidence tendered in support of the injuries suffered by the Respondent and to correctly relate them to case law cited therein; and thus failed to arrive at a fair and reasonable compensation to the Respondent for the said injuries;c.That the learned trial magistrate erred in failing to give reasons for finding that the sum of Kshs 900,000/= in general damages to the Respondent was reasonable and/or adequate compensation;d.That the learned trial magistrate erred in failing to scrutinize/evaluate the evidence tendered and to correctly relate them to case law cited and thereby misapprehended the facts by finding the Appellant 100% liable for causing the accident.e.That the learned magistrate erred in law and fact by validating the Respondent's evidence in determining liability; which evidence had not been supported factually and was marred with inconsistencies in its entirety;f.That the learned magistrate erred in law and fact and in principle in failing to note that the Respondent had failed to strictly prove the particulars of negligence pleaded in the Plaint contrary to the trite rule of evidence that negligence must be strictly proven;g.That the learned magistrate erred in law and fact in failing to apportion liability taking into account the totality of evidence laid by the Appellant and Respondent. 3.They sought the following orders:a.This appeal be and is hereby allowed;b.The award of general damages in the sum of Kshs. 900,000/= be set aside and/or varied;c.That the trial magistrate's decision finding the Appellant 100% liable be reviewed, varied, reversed and or/struck out and replaced with a finding that the Respondent failed to prove their case within a balance of probabilities;d.That this Honourable court be pleased to assess reasonable compensation in general damages to the Respondent. Pleadings 4.The Respondent filed suit vide a plaint dated 19.04.2022, claiming for damages arising from an accident that occurred on 12.07.2021 at about 2000 hours, at Hajakane along Kigio-Kirwara road involving motor cycle registration number KMEA 686B and motor vehicle registration number KBQ 284 R. The Respondent set forth particulars of negligence for the accident motor vehicle and pleaded general damages for pain, suffering and loss of amenities for the following injuries;a.Fracture of tibia and fibulab.Bruises on the left kneec.Soft tissue injury to the left shoulder. 5.The Respondent filed special damages and future medical expenses totaling to Ksh. 104,360/=. The Respondent posited that he was a boda boda rider earning Ksh 30,000/= per month and was unable to continue after, hence diminished capacity and loss of earnings. Evidence 6.The respondent testified and adopted his statement where he reiterated the contents of the plaint. He blamed the appellant for failing to control the vehicle and sought for future medical expenses. He stated that he walked with a walking stick. A metal plate was inserted. He had fracture of the leg. 7.He stated that he was on the side of the road close to his home, alone. The pillion passenger alighted but left nearby his home. The motor cycle lights were on though there were no lights on. A motor vehicle was from Kirwara direction heading to Gatanga direction. He was hit on the left side. 8.PW2 was Johnson Mwangi Njonjo of Kirwara Police Station. He stated that there was a hit and run traffic accident. The respondent was a rider at about 8 pm. He testified that the deceased was riding motor cycle registration number KMEQ 611 V. He stated that at Kaka Jane area along Kirwara Jogo, Thika road, while having come from Gatunyu town, the respondent had stopped. He was hit by a vehicle that did not stop after the accident. He blamed the motor vehicle for the accident. He produced a police abstract. 9.On cross examination he stated that the accident occurred and the pillion passenger was hit. He took the motor cycle and Prado to the police station. The impact on the motor vehicle was on the left. The motor vehicle was on its lane and went off the road. They towed the motor vehicle as the driver was not there. The vehicle did not stop after the accident. It landed into a ditch 3 km after the accident. 10.DW1, Geoffrey Ndungu Njoki testified that he was a driver with 10 years’ experience and adopted his statement. He testified that he saw a motor cycle coming from opposite direction but stationary? It blinded him with headlights and they collided on the left. He went to check the condition of motor cycle but saw angry bodabodas and left. They chased him and had a road block at Gichagi. He tried to avoid then but landed in a ditch. He reported the accident to Kirwara Police Station on 13.07.2021 where the vehicle had been towed. Submissions 11.The Appellant filed submissions dated 18.12.2025. They posited that the court should have relied on prevailing economic environment. Reliance was placed on the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] KEHC 9074 (KLR), where the court held as follows:30.Award of damages is an exercise of discretion of the trial court but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment. The Court of Appeal in Kivati -vs- Coastal Bottlers Ltd[22] in the following words:-"The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate."31.In Ken Odondi & two others vs James Okoth Omburah t/a Okoth Omburah & Company Advocates stated as follows:-"We agree that this court will not ordinary interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled." 12.They reiterated the principles as laid out in the case of David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'a [2016] KEHC 6964 (KLR), where the court held as follows:Accordingly, I now turn to the question of damages awarded by the lower court, the crux of this appeal. The law on circumstances under which an appellate court would interfere with an award of damages has been reiterated in numerous authorities and in various jurisdictions throughout the world and the general principle is the same. The Court of Appeal of Nigeria discussing the same issue in the case of Dumez (Nig) Ltd V. Ogboli[{1972} 3 S.C. Page 196.'' Per BADA, J.C.A (P. 28, paras. C-G)- had this to say:“It is settled law that ''An Appellate Court will not interfere with an award of general damages by a trial Court unless:- (a) where the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the Appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage."Award of damages is an exercise of discretion of the trial court but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment. Therefore, as was held in the above cited case, and indeed in numerous authorities in this country, an appellate court will only interfere with the award on general damages on the above cited grounds. 13.The appellant buttressed their case with the decision in Kemro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 and Mariga v Musila [1984] KECA 59 (KLR). In the latter case, the court of appeal [Hancox JA, Chesoni & Nyarangi Ag JJA] held as follows:Mr Varia for the respondent cited what the court said in Chanan Singh & Gujjan Singh v Channan Singh & Handa (1955) 22 EACA 1 at p 129 para 3 that assessment of damages is more like an exercise of discretion and the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages unless it is satisfied that the judge has acted upon a wrong principle of law, or has misapprehended the facts, or has for these or other reason made a wholly erroneous estimate of the damage suffered. I agree with that statement. It is not what the appellate court would have awarded, but whether the judge has acted on wrong principles 14.The appellant enjoined the court to perform its duties as set out in section 78(2) of the Civil Procedure Act. The said section states as follows:(2)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein. 15.The appellant addressed the duty of the first appellate court as set out in the persuasive case of Oluoch Eric Gogo v Universal Corporation Limited [2015] KEHC 4850 (KLR), where R.E.Aburili, held as follows:As a first appellate court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the Court of Appeal case of Selle &Another Vs Associated Motor Boat Co. Ltd &Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect. In addition, this Court will normally as an appellate court, not normally interfere with a lower court's judgment on a finding of fact unless the same is founded on wrong principles of fact and or law. The Court of Appeal in the above case further held that:“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (See also Law Ja, Kneller & Hannox Ag JJA in Mkube Vs Nyamuro [1983] KLR, 403-415, AT 403). 16.They raised two issues, that the court erred on holding the appellant 100% liable, and making different awards under different heads. She submitted that the court did not consider their submissions and that the finding was not based on cogent evidence. It was submitted that the particulars were not proved. 17.They submitted that the respondents produced Dr. Karanja’s report while the appellant produced Dr. Waithaka’s report with assessment of Respondent’s permanent disability at 10%. They submitted that an award of Ksh. 700,000/= will have sufficed. Reliance was placed on the cases of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR), Gladys Lyaka Mwombe v Francis Namatsi & 2 others [2019] KEHC 4800 (KLR), and Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR). 18.The respondent filed submissions dated 9.1.2025. It was submitted that the burden of proof as per Section 107(1), 109 and 112 of the Evidence Act, is on whosever desires the court to find liability or a right. On liability reliance was placed on the case of Nandwa v Kenya Nazi Ltd [1988] KECA 42 (KLR), where it was held as follows:In any case the owner of the motor vehicle will be found negligent where the defective vehicle is found on the road. The defendant will have to displace the allegations and all the facts proved. In Henderson v Henry E Jenkins & Sons [1970] AC 282 at 301 Lord Pearson at letter D stated:In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff’s action fails. The formal burden of proof does not shift.But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff’s favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential of proof resting on the defendants...and at 30 letter H Lord Pearson made a finding that:From these facts it seems to me clear, as a prima facie inference, that the accident must have been due to default of the defendants in respect of inspection or maintenance or both. Unless they had a satisfactory answer, sufficient to displace the inference, they should have been held liable. 19.Further reliance was placed on the case of Regina Wangeci V Eldoret Express Co. Limited [2008] KEHC 2949 (KLR). They submitted that the appellant was negligent and did not provide an answer to the respondent’s case. Reliance was placed on the case of Isabela W. Karanja vs W. Mabele (1982-88) KLR, where the court held that where the accident involved the pedal cyclist and a motor vehicle, the latter was driving a lethal machine hence he had a greater duty of care. They also relied on the case of Masembe v Sugar Corporation & another [2002] 2 EA 434. 20.On damages, he submitted that the injuries were serious and there is a metal plate in situ. The respondent could not walk without use of crutches. A second report by Dr. Waithaka Mwaura confirmed the fracture of tibia and fibula. The Appellant’s advocate assessed 10% disability. They relied on the case of George William Awuor v Beryl Awuor Ochieng [2020] KEHC 1103 (KLR), where R.E. Aburili J, allowed the appeal against quantum of damages to the extent that the award of general damages in the sum of Kshs. 2,000,000/= was set aside and substituted with an award of Kshs 1,200,000/=. The award was for a claimant who suffered fractures of the right femur and left tibia fibula, where the tibia fibula fractures were compound while the femur fracture was simple. 21.Further reliance was placed on the case of Nyamete & another v Ogutu [2024] KEHC 2639 (KLR), where the claimant suffered tenderness and fluctuant swelling scalp top of head to occipital area, tenderness over cervical spine with limitation in range of movement in all planes, tenderness over 3rd through 5th lumber area, associated left side sciatica with posture straight leg rising at 45 left side, tenderness and bruising over interior abdominal left side, swollen tender right wrist with associated restriction of movement, soft tissue swelling, haematoma of the skull but no swelling, lost lordosis of the cervical spine but no fracture. The final observation of the doctor was that the plaintiff in the said case suffered multiple injuries on the head, neck, abdomen, right wrist and lumber spinal cord. An award of Kshs 1,450,000.00 as general damages was substituted with an award of Kshs 1,000,000.00 by DAS Majanja. 22.They also relied on the case of Ankush Entrprises Ltd v Julius Mutui Musee [2018] KEHC 2789 (KLR). The claimant therein was awarded general damages of Kshs. 1,000,000/=. The claimant suffered fracture of right radius and fracture of right ulna with 15% disability. Analysis 23.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. 24.The duty of the first appellate court was set out in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held by as follows;-.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally. 25.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 26.In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion… 27.This is a civil trial in which the court must find for one party or the other on the balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred. 28.This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR), where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows:The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:-That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 29.The burden of proof is on whoever alleges. This is as per section 107-109 of the Evidence Act, which provides as follows:107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 30.The appellant’s evidence was what the court calls unflattering lies. Such evidence reminds me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR):4…In my view to marked such remarkable averments can only be taken to be meant to mislead the court. Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.5.In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa… 31.If the motor cycle was coming from the opposite direction, it cannot at the same time be stationary. It is unparalleled oxymoron. Such evidence is not worthy of belief. The point of impact and the presence of the motorcycle was on the left side off the road. There is no explanation why the point of impact is off road. The vehicle must have been driving at excessively high speed. No wonder the vehicle went off the road again while running away. The evidence is not believable at all. At least when a party is lying, it must as much as possible have the lies mimic the truth, not some half-baked stories that cannot be congruent. 32.The question of liability was addressed in the case of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] KECA 336 (KLR), where the court of appeal [Kwach, Omolo & Pall, JJ.A] posited as follows:But that apart, the evidence before the learned Judge established, on a balance of probabilities, that the appellant was on the pavement when the vehicle hit him and there can be no clearer evidence of negligence than this, especially in the absence of an explanation from the first respondent, as to how the accident happened. The allegation in the defence that the appellant had dashed across the road is not evidence and remains forever an allegation. 33.In the case of Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR), the court of appeal [O’Kubasu, Githinji & Waki, JJ.A)] stated as follows:It was submitted by Mr. Mburu, learned counsel for the respondents that the onus was on the appellant to prove her case and it never shifted to the respondent. We agree with that proposition.As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act Cap 80, which provides:“107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act, thus:109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”The two sections carry forward the often repeated evidential adage: “he who asserts must prove” 34.I am unable to understand how, a stationary motor cycle hit a moving vehicle. The appellant raised the question of submissions. 35.Mwera J, posited as follows when postulating on the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993:“Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 36.Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their precence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, where the Court held that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 37.The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 38.The question of failure to deal with submissions is thus a nonstarter. 39.The next question is whether the Appellant proved contributory negligence on part of the respondent. The driver of the accident motor vehicle did not demonstrate what he did to avoid the accident. It was not his case that he could not swerve or brake or otherwise manage the motor vehicle to avoid it hitting the motorcycle. On the other hand, he did not demonstrate how the stationary motor cycle contributed to an accident. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that; -“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”. 40.Contributory negligence is not based on the duty of care to the appellant but the Respondent’s duty to himself. The motor cycle was stationary off the road, with lights on as it must. There is no scintilla of evidence that the respondent contributed to the accident. This was addressed in the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR where Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, and held as follows:“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 41.I find no basis to interfere with liability which was very succinct and unassailable. The appeal on liability is thus dismissed. 42.The next question is appeal on damages. In deciding whether to disturb quantum given by the lower court, the court should be aware of its limits. Being exercise of discretion the exercise should be done judiciously in the circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. The court of appeal pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages. 43.In the case of Henry Hidayo Ilanga versus Manyama Manyoke [1961] EA 705, 713 at paragraph c, Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former court of appeal for East Africa held as follows:In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd[1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge.The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 44.Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneous assessment of damages.c.To ascertain whether the award is simply not justified from evidence. 45.To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards. For the appellate court, to interfere with the award it is not enough to show that the award is high or low or even that had I handled the case in the subordinate court, I would have awarded a different figure. The court should not disturb award of damages unless it is inordinately low or it is entirely erroneous. Reliance was placed on the case of Paul Kipsang Koech & Another V Titus Osule Osore [2013] KEHC 3561 (KLR), where the court, F. Gikonyo, J, held as follows:(13)It is a well-established law that, assessment of quantum of damages in a claim for general damages, is a discretionary exercise. The law has, however, set the dimensions for the exercise of discretion; must be exercised judicially, with wise circumspect and upon some defined legal principles. Invariably, when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court. The discretion, in assessing the amount of general damages payable will be disturbed if the trial court:i.Took into account an irrelevant factor orii.Left out of account a relevant factor or,iii.The award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. 46.It must be noted that this is more like an exercise of judicial discretion. This was addressed in the case of Loice Wanjiku Kagunda -vs- Julius Gachau Mwangi C A No. 142 of 2003 (UR) where the Court held: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 or 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 Mariga –vs- Musila (1984) KLR 257.) 47.The appellant relied on authorities that are 5 to 7 years old. They are irrelevant authorities. In the case of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR), the award was made on 09.05.2019. The same was reduced since the award of 50% disability had no basis. The claimant suffered: compound fracture of tibia and fibula bones of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries and soft tissue injury on the lower left leg. The award was reduced to Ksh 450,000/=. 48.In the case of Gladys Lyaka Mwombe v Francis Namatsi & 2 others [2019] KEHC 4800 (KLR), W. Musyoka J declined to disturb the award of Ksh 300,000/= since from the review of the recent decisions on the comparable injuries, it would appear to me that the trial court did not fall into any error in the manner it assessed general damages for the injuries sustained. The trend is to award general damages in the range of Kshs 300,000.00 to Kshs. 500,000.00. 49.On the final authority, Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR), the 3rd respondent sustained a single fracture of the right tibia and fibula and fractures of the upper teeth and was awarded Ksh. 500,000/=. The 2nd respondent sustained a single fracture of the tibia and fibula and dislocation of the hip joint. The fracture was treated by POP and it was not comparable to the injuries sustained by the claimant in Zachary Kariithi’s Case (Supra) who sustained multiple compound fractures. Even in the case of S A O (minor suing through next friend MOO) v The Registered Trustees of the Anglican Church of Kenya Maseno North Parish (Supra), the claimant sustained multiple injuries. An award of Ksh. 450,000/= was made. 50.In the case of Nahson Nyabaro Nyandega v Peter Nyakweba Omboga [2021] KEHC 5158 (KLR), the court reduced an award of Ksh 900,000/= for a fracture of the tibia/fibula and soft tissue injuries from Ksh. 900,000/= to 650,000/= in 2021. 51.The next question is whether substituting a sum of Ksh 900,000/= with Ksh 700,000/= is not exercise in substitution of discretion. The two medical records show practically the same injuries and some form of permeant disability. Dr. George K. Karanja found that there was significant fracture causing trauma. There was a metal in situ requiring removal. Dr. Waithaka on the other hand maintained 10% permanent disability. Indeed the court indicated that he had factored his incapacity in making the award. The court did not award diminished earning capacity separately but chose to combine the same. I agree that in the circumstances, the award of Ksh. 900,000/= for both general damages and loss of earning capacity is proper. It is more prudent to make the separate awards but it is not an error not to. The appeal is not merited and is accordingly dismissed. 52.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 53.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 54.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that costs follow the event: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 55.The Respondent shall have costs of the appeal of Ksh. 65,000/= for the appeal. Determination 56.In the upshot, I make the following orders: -a.The appeal lacks merit and is accordingly dismissed.b.Costs of appeal of Ksh. 65,000/= to the Respondent.c.14 days right of appeal.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 26TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Bunyasi for the AppellantMr. Mungasia for the RespondentCourt Assistant – Martin