https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9592

Majuku v Kolum & 2 others (Civil Appeal E174 of 2024) [2026] KEHC 9592 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9592 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E174 of 2024 LM Wachira, J June 26, 2026 Between Sarah Mercy Majuku Appellant and Cosmas Kipkogei Kolum 1st Respondent Henry Onyango Ayoo 2nd Respondent Kevince Odungo 3rd Respondent (Being an Appeal from the Judgment of an Adjudicator Hon. G. C. Serem (RM) delivered on the 14th August, 2024 in Kisumu SCCOM No. E039 of 2024) Judgment Introduction 1.The Appeal emanates from Judgment of Hon. G. C. Serem delivered on 14th August 2024 in Kisumu SCCC No. E039 of 2024 where the court found in favour of the Plaintiff with liability attaching to the 2nd and 3rd Respondents at 100%, and general damages for pain and suffering being awarded at Kshs.200,000/- 2.The suit related to a Road Traffic Accident that occurred on the 24th December, 2023 involving motor vehicle registration number KCN 418 P, in which the Claimant was a passenger and motor vehicle registration number KDH 318 H which was allegedly owned by the 2nd Respondent and insured in the name of the 3rd Respondent. 3.Dissatisfied with the Trial Magistrate’s Judgment, the Appellant has filed the instant Appeal seeking to set aside the orders of the court on both liability and quantum, arguing that the 1st Respondent had contributed to the occurrence of the accident and that the quantum of damages awarded was not commensurate to the injuries suffered. Trial Court Evidence 4.The Claimant and the 1st Respondent testified in court. According to the Claimant, she had got a lift from the 1st Respondent from Muhoroni, in motor vehicle registration KCN 418 P. When they reached the Museum junction, the motor vehicle Registration number KDH 318 H came from the lefthand side of the road and knocked the vehicle that the 1st Respondent was driving. The Claimant, who was seated at the back left sustained injuries and was treated at Yala Sub District Hospital. 5.The Claimant blamed both drivers for the accident stating that the 1st Respondent could have driven at a slower speed. She blamed the 2nd and 3rd Respondent stating that their vehicle had come from a feeder road on the left hand side and knocked the vehicle that was driven by the 1st Respondent. 6.The 1st Respondent confirmed the occurrence of the accident and told court that the KDH 318 H had come from a feeder road and knocked his vehicle. He confirmed that the Claimant was in his vehicle and that she was his sister in law. The 1st Respondent blamed the 2nd and 3rd Respondent’s motor vehicle stating that the vehicle had joined a main road from a feeder road and therefore it should have given way. He explained that there is nothing he would have done to avoid the accident since he was at a speed of 50KPH. The 1st Respondent did not attribute any negligence to the Claimant. 7.The 2nd and 3rd Respondent did not call any evidence and closed their case after the close of the 1st Respondent’s case. 8.After the hearing, the trial Magistrate entered judgement for the Claimant as against the 2nd and 3rd Respodents jointly. Aggrieved by the judgment, the appellant filed this appeal and sought to set aside the judgment on both liability and Quantum, citing the grounds listed on the Amended Memorandum of Appeal, as follows: -a.The Learned Trial Adjudicator erred in law and in fact in treating the evidence superficially and thus coming to the wrong conclusion.b.The Learned Trial Adjudicator did not consider or sufficiently consider the contents of the documents and averments of the Claimant in the documents filed in court in support of the claim.c.The Learned Trial Adjudicator misdirected himself in ignoring the principles applicable and relevant authorities cited in the written submissions filed in the court.d.The Learned trial Adjudicator erred in not sufficiently taking into account all the evidence presented to court in totality, in particular the evidence presented on behalf of the Appellant and the serious nature of the injuries.e.The Learned trial Adjudicator erred in awarding an immensely low and unreasonable quantum, taking into account the injuries sustained by the Appellant.f.The learned trial adjudicator failed to apply judicially and adequately evaluate the evidence and exhibits tendered and therefore arrived at a decision that was unsustainable in law. Appellant’s Submissions 9.The Appellant submitted that it was not disputed that she was involved in the accident, which involved motor vehicle KCN 418 P, in which the Claimant was a passenger and which vehicle was under the control of the 1st Respondent, and motor vehicle registration number KDH 318 H which was allegedly owned by the 2nd Respondent and insured in the name of the 3rd Respondent. 10.The Appellant submitted that the 1st Respondent only told court that there is nothing he would have done to prevent the accident and blamed the driver of Motor Vehicle Registration number KDH 318 H claiming that he was drunk. According to the Appellant, the 1st Respondent did not adduce any evidence to absolve himself from liability. 11.The Appellant submitted that the liability ought to have been apportioned at 50:50 against the 1st Respondent on the one hand and the 2nd and 3rd Respondents on the other hand, and therefore urged this court to find so. 12.On quantum the main contention by the Appellant is that the Claimant was expecting a child at the time of the accident. The Appellant submits that as a result of the injuries, the Claimant lost the pregnancy. The discharge summary adduced in court as evidence indicates that the child was born alive but passed on a day after birth. 13.The Appellant submitted that it was unfair and inhumane for the trial court to dismiss the claim on loss of pregnancy by just stating that “The obstetric Ward discharge summary herein indicated that the Claimant was admitted on the 27/12/2025 and she gave birth however the fate of fetus was dead.” 14.The Appellant submitted that the court should consider the loss of pregnancy and review the general damages on pain and suffering to Kshs.1,000,000/-. 1st Respondents Submissions 15.The 1st Respondent submitted that it is settled law that he who alleges must prove and cited section 107 of the Evidence Act and the Court of Appeal decision in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2004] eKLR) and submitted that it was the duty of the Appellant herein to present evidence before the trial court to prove her case. 16.Counsel quoted Section 108 of the Evidence Act, which provides that “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side” and further that section 109 of the Act declares that, “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.” 17.The 1st Respondent submitted that the appellant did not adduce credible evidence which can stand in the absence of rebuttal evidence by the Respondent and relied on the Court of Appeal decision in Charterhouse Bank Limited (under statutory management) vs. Frank N. Kamau [2016] eKLR Where the court stated thus:-“…the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the Defendant…..the Plaintiff must adduce evidence, which in the absence of rebuttal evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim.” 18.The 1st Respondent submitted that the Appellants evidence did not meet this threshold because at cross-examination by counsel for the 1st Respondent the Claimant initially stated that the motor vehicle registration number KDH 318H was to blame for the accident as it was being driven at high speed causing it to ram into motor vehicle registration number KCN 418P, in which she was travelling. She further stated that the driver of motor vehicle KDH 318H was drunk and yet she blamed the driver of KCN 418 P, for allegedly failing to slow down, even after confirming that the KDH 318 H had joined from a feeder road and knocked KCN 418 P. 19.Counsel for 1st Respondent submitted that there is no liability without fault and cited Statpack Industries vs. James Mbithi Munyao - NAIROBI HCCA No. 152 of 2003 where the court held that there must be a causal link between a person’s negligence and the injuries, which burden is upon the Plaintiff to prove. The 1st Respondent submitted that the Claimant did not demonstrate any causal link between the driving of KCN 418P and the result of KDH 318H ramming into KCN 418P, and to do this, she had to show the intentional act or acts of the 1st Respondent that caused the accident. 20.The 1st Respondent urged the court to find that liability against the 1st Respondent had not been established, and uphold the finding of the trial Court. 21.On quantum the 1st Respondent submitted that this court may not interfere with an award unless a certain threshold is met. Counsel cited Elizabeth Mumbi Kinyua vs. Samuel Wanjohi Murage [2024] eKLR where the court held that for it to interfere with the award it must ascertain the following:-a.The trial court applied irrelevant factors or omitted relevant factors;b.The award is so high as to amount to an erroneous assessment of damages;c.The award is simply not justified from the evidence. 22.The 1st Respondent submitted that the treatment records produced in court show that the Claimant’s injuries were all soft tissue in nature, save for the miscarriage, which was not supported by any medical report showing that the loss of the pregnancy was as a direct result of the accident. He submitted that the discharge summary (page 14 of the Record of Appeal) documented it as a birth. 2nd and 3rd Respondent’s Submissions 23.The 2nd and 3rd Respondents’ submissions are that the Claimant had in her testimony attributed negligence to the 1st Respondent and stated that he was drunk. They submitted that in the present case, it is difficult to tell who to blame and urged court to apportion liability at 50:50 against the 1st Respondent and the 2nd and 3rd Respondent jointly and severally. 24.On quantum, it was submitted that the discharge summary produced in court indicated that the Claimant delivered a child on 27th December 2023 and that the child unfortunately passed away on 28th December 2023. They submitted that the discharge summary does not support the allegation of miscarriage and on the contrary, it confirmed that a full-term or near-term birth occurred, which by definition negates the claim of miscarriage. 25.The 2nd and 3rd Respondents submitted that no nexus was established between the accident and the neonatal death. The Appellant adduced no evidence demonstrating that the loss of the child resulted from injuries allegedly sustained in the accident and as per the evidence presented, the child’s demise could have occurred due to any other cause, other than the accident and attributing the child’s death to the accident is speculative and unproven. Analysis and Determination 26.This being the first appellate court, its duty is as summarized by the Court of Appeal in Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123: which is "… to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ 27.Having considered the appeal, the submissions in support and the opposing submissions, I frame the following issues for determination: -i.Whether the trial court erred in apportioning liability at 100% against the 2nd and 3rd Respondents.ii.Whether the trial Court erred in law and fact in awarding the Claimant Kshs.200,000/- in general damages of pain and suffering, considering the nature of injuries suffered. Liability 28.As correctly submitted by the Respondents it is settled law that he who alleges must prove. Section 107 of the Evidence Act states as much. Section 108 of the Evidence Act, also provides that the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side and further section 109 of the Act declares that, 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. 29.Further to the above sections of the law, in the Court of Appeal decision in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2004] eKLR) the court held that it was the duty of the Appellant herein to present evidence before the trial court to prove her case. 30.The evidence availed by the Appellant herein is that she was in motor vehicle Registration number KCN 418 P and this vehicle was knocked from the side by motor vehicle registration number KDH 318 H and she sustained injuries. Although the Appellant submitted that the 1st and 2nd and 3rd Respondents should shoulder liability equally, there was no reason or explanation given as to why any liability should be attributed to the 1st Respondent. 31.For the court to interfere with the apportionment, the Appellant needed to adduce credible evidence which can stand in the absence of rebuttal evidence by the Respondent. In the case of Charterhouse Bank Limited (under statutory management) vs. Frank N. Kamau [2016] eKLR the court stated thus:-“…the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the Defendant.…………… the Plaintiff must adduce evidence, which in the absence of rebuttal evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim.” 32.My finding is that the evidence adduced by the Appellant did not meet this threshold. In fact, although the Appellant was clear that she was a passenger in the 1st Respondent motor vehicle registration number KCN 418 P her testimony was not clear on why she attributed negligence to the 1st Respondent, despite confirming that the 1st Respondent’s vehicle was knocked when it was on it’s correct lane by a vehicle from a feeder road on the left. 33.Further, although at cross-examination by counsel for the 1st Respondent’s the Claimant initially stated that the motor vehicle registration number KDH 318H was to blame for the accident as the driver was drunk and it was being driven at high speed causing it to ram into motor vehicle registration number KCN 418P, in which she was travelling, she went ahead and later stated that she blamed the driver of KCN 418 P, for allegedly failing to slow down. Shen then again confirmed that KDH 318 H had joined from a feeder road and knocked KCN 418 P. 34.If indeed the KCN 418 P was on the main road and the KDH 318 H joined the main road, from a feeder road, the vehicle that was supposed to slow down and give way was the KDH 318 H and not the vehicle driven by the 1st Respondent. 35.As correctly submitted by Counsel for 1st Respondent, there is no liability without fault and there must be a causal link between a person’s negligence and the injuries, which burden was upon the Appellant herein to prove. Indeed, in the case of Statpack Industries vs. James Mbithi Munyao - NAIROBI HCCA No. 152 of 2003, the court held that there must be a causal link between a person’s negligence and the injuries, which burden is upon the Plaintiff to prove. 36.The Appellant herein did not demonstrate any causal link between the driving of KCN 418P and the result of KDH 318H ramming into KCN 418P, and to do this, she had needed to connect the two actions. This was lacking in the Appellant’s testimony in the trial court. 37.As regards the 2nd and 3rd Respondents, I have already stated that the motor vehicle Registration number KDH 318 H was joining a main road from a feeder road and under the traffic rules, it ought to have given way. 38.Although the 2nd and 3rd Respondents have submitted that the Claimant had in her testimony attributed negligence to the 1st Respondent and stated that he was drunk, this is not correct. The Claimant attributed negligence to all the Respondents and it is upon this court to determine who was culpable. 39.The Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424 held that an appellate court will not interfere with findings of fact by the trial court unless they are based on no evidence, or the court misapprehended the evidence, or the findings are plainly wrong. I find no reason of interfering with the finding of the trial court. 40.My finding is that the driver of motor vehicle Registration number KDH 318 H was to blame for the accident, because he failed to give way and drove into the pathway of the 1st Respondent and caused the accident. Therefore, the trial court did not err in apportioning liability at 100% against the 2nd and 3rd Respodents jointly and severally. Quantum 41.I have considered the evidence on record and the submissions by the parties. It is trite law that this court may not interfere with an award on damages unless a certain criterion is met. In the case of Elizabeth Mumbi Kinyua vs. Samuel Wanjohi Murage [2024] eKLR the court held that for it to interfere with the award it must ascertain that trial court applied irrelevant factors or omitted relevant factors; that the award is so high as to amount to an erroneous assessment of damages and finally that the award is simply not justified from the evidence. This court will thus exercise caution before interfering with an award by the trial court. 42.According to the medical evidence adduced in court through the treatment card, the P3 form and the discharge summary, the Appellant sustained soft tissue injuries. She also claimed to have miscarriage as a result of the accident and in support of this has the discharge summary indicating that she delivered a child on 27th December, 2023 and the child died on the 28th December, 2023. 43.From the treatment record the Claimant’s injuries are indicated as soft tissue in nature except for the allegation of miscarriage. The main contention in quantum relates to the alleged miscarriage. 44.I have considered the birth notification, the medical report (p3 form) and all the documents produced in court by the Claimant. None of them indicate that the miscarriage was as a result of the road accident. Evidence on record is that the Claimant went to hospital on 24th December, 2023 after the accident and was treated and discharged. She only went back on 27th December, 2023 and was admitted and delivered a baby who was alive but died on the 28th December, 2023 as indicated on the discharge summary. 45.In the circumstances, the Claimant ought to have led evidence to prove that the road accident of 24th December, 2023, caused the death of a baby who was born on 27th December, 2023 and died on the following day. This evidence was not adduced in court. There was no evidence demonstrating that the loss of the child resulted from injuries sustained in the accident and the child’s demise could have caused by any other reason and not necessarily the accident herein. Even the discharge summary does not support the allegation of miscarriage and on the contrary, it confirmed a live birth which cannot be termed as miscarriage. 46.In the circumstances, my finding is that there was no proof that the Appellant suffered a miscarriage and the trial court did not err in that finding. The court also did not err in assessing the damages as soft tissue injuries damages. 47.In considering cases with comparable injuries like FM (minor suing through mother and next friend MWM) vs. JNM & Another [2020] eKLR where the Appellant sustained blunt injuries to the head, neck, thorax, abdomen and limbs and the Appellate court enhanced the lower court award of Kshs.60,000/- to Kshs.100,000/- and Edward Mutevu Maithya & Another vs. Edwin Nyamweya [2022] eKLR where the Respondent sustained cut wounds on the scalp, bruises on the back, right upper limb and left lower limb and the Appeal Court substituted the trial court award of Kshs.550,000/- with an award of Kshs.100,000/-, my finding is that the trial court considered and applied the relevant principles and arrived at an award of Kshs.200,000/-, which I find to be reasonable in the circumstances. Special Damages 48.It is trite law that Special Damages must be specifically pleaded and proved before they can be awarded by the Court. The Appellant must demonstrate that they made the payments or suffered the specific injury before compensation is permitted. The Court of Appeal in Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, held thus:“Special damages must not only be specifically claimed but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 49.In the instant case, the Appellant pleaded special damages of Kshs.43,015/-. The specific proof required was receipts of expenses totaling to that amount. The Appellant produced in court 3 medical receipts as exhibited in page 20, 22 and 23 of the Record of Appeal all produced as a bundle marked exhibit 6 in the trial court. The receipt on pg 20 of the record of Appeal is from Penda Pharmaceuticals for Kshs.395/- while the two receipts on Pg 22 and 23 are from Kisumu County Hospital amounting to Kshs.550/=. The total Special damages are therefore Kshs.945/- which I find has been pleaded and proved. 50.The upshot of the matter is that the Appeal partially succeeds on the calculation of special damages only. So that the Appeal on liability and award of general damages for pain and suffering is found to be without merit and dismissed, while special damages are reviewed from Kshs.550/- to Kshs.945/- 51.And because the award of the lower court has been upheld on the two limbs of appeal except for the specials, I will direct that each party shall bear its own costs in respect of the Appeal. 52.Orders Accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys – Court AssistantMr Ondego for the Appellant.Miss Onyoo holding brief for Asuna for 1st Respondent.Miss Ndeto for the 2nd and 3rd Respondent.Miss Ndeto: – I seek 30 days stay.Miss Onyoo: - we also request for 30 days’ stay.Mr. Ondego: – No objection.Court: – Stay is granted as prayed.