Simbisa Brands Kenya Ltd & another v Kania (Civil Appeal E818 of 2024) [2026] KEHC 8133 (KLR) (Civ) (11 June 2026) (Judgment)

Simbisa Brands Kenya Ltd & another v Kania (Civil Appeal E818 of 2024) [2026] KEHC 8133 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8133 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E818 of 2024 D Mburu, J June 11, 2026 Between Simbisa Brands Kenya Limited 1st Appellant Shiltone Bushuru 2nd Appellant and Caroline Wambui Kania Respondent (Being an appeal from the decision of Honourable Lucy Ambasi (CM) delivered on 28th June 2024 in Nairobi CMCC No. E3316 of 2022) Judgment 1.Having been dissatisfied with the above-mentioned decision, the Appellants filed this Appeal and preferred the following grounds (in summary) in the Memorandum of Appeal dated 10th July 2024. That Learned Magistrate erred in;a.In law and fact in failing to consider and find that the Appellants had shown a prima facie case with a high probability of success.b.In law in failing to consider and find that there was no concrete evidence placed before the court to determine who was to blame for the accident between the 1 st and 2nd Appellants and the Respondent.c.In law and fact in failing to consider and find that the contents of a police abstract as extracted from the records held by the police is merely evidence that a report of an accident was made and not that an accident occurred.d.In law and fact in failing to consider and find that a police abstract is not conclusive proof of liability.e.In law and fact in failing to consider and find that the Police Officer was not present at the scene of the accident and as such cannot render any account leading up to or surrounding the alleged accident which goes against the evidentiary rules of direct evidence thereby rendering his testimony as hearsay.f.In law and fact in failing to consider and find that where there is no concrete evidence to determine how the accident occurred and who is to blame for causing an accident, both parties should be held equally liable.g.In law and fact in failing to consider and find that there can be no liability without fault.h.In law and fact in failing to consider and find that the Respondent allegedly sustained.i.In law and fact in failing to consider and find that in assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike.j.In law and fact in failing to consider and find that in assessing compensatory damages, the law seeks at most to indemnify the victim for the loss suffered and not to mulct the tortfeasor for the injury he has caused. 2.It thus prayed that that the appeal be allowed with costs and the judgment of the lower court be set aside in its entirety, and that this Honourable Court do substitute its own findings. 3.Directions were taken to have the appeal disposed of by way of written submissions. The parties complied with the court’s directions. The Appellants’ submissions are dated 21st March 2025 while the respondent’s are dated 26th February 2025. 4.The Appellants submitted that the trial magistrate erred in holding the appellants liable at 100% yet the respondent never proved the same. The appellants urged this court to apportion liability in the ratio 50: 50 as between the appellants and the respondent. 5.The appellants further submitted on quantum praying for reduction of the award of from Kshs. 1,000,000/= awarded by the trial court to a sum of Kshs. 800,000/=. Analysis and Determination 6.This Court has carefully considered the Record of Appeal, the parties’ respective submissions, the authorities cited as well as the law and the only issue that falls for this Court’s determination is whether the trial court erred in its finding on liability and whether the award of general damages was excessive. 7.This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence and consider arguments by parties and apply the law thereto, and, make its own determination of the issue or issues in controversy. Except however, that it should give due allowance to the fact that it neither saw nor heard the witnesses’ testimonies. 8.This was aptly stated by the Court of Appeal in the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123 as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must 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, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 9.I have perused the Memorandum of Appeal and the entire record of the Trial Court and I am alive to the fact that my task is to re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. 10.It is not in dispute that there was an accident involving the respondent as a pedestrian and the suit motor cycle registration number KMEL 774J. It is also not in dispute that the said motor cycle was registered in the name of the 1st appellant and was being driven by the 2nd appellant at the time of the accident. The evidence on record clearly shows that the said motor cycle knocked down the respondent as she was crossing the road. The respondent testified before the trial court and stated that she was crossing the road at a zebra-crossing when the said motor cycle was so negligently driven by over speeding that it knocked her down. Her evidence was corroborated by that of the investigations officer who though not at the scene at the time of the accident, confirmed the occurrence of the accident and that after investigations, he charged the rider of the motor cycle with a traffic offence. The traffic case had however not been concluded. 11.The appellants who were the defendants in the lower court case did not adduce any evidence meaning that the respondent’s evidence on the cause of the accident remained uncontroverted. At paragraph 13 of her judgment, the learned trial magistrate correctly observed that the defendants did not rebut the plaintiff’s as to how the accident occurred. The learned trial magistrate further correctly applied the decision of this court in the case of Montex Knitwear Mills Limited Milimani HCCC 834 of 2002 where Lesiit J., as she then was, held that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing, the party fails to substantiate its pleadings. The court further stated that in the same vein, the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged. 12.Invariably, this court hereby comes to the inevitable conclusion that the learned trial magistrate’s finding on liability was correct. The appeal against the finding on liability lacks merit and is hereby rejected. 13.On the issue of quantum, the appellants do not dispute the injuries that the respondent sustained. They only challenged the award of Kshs. 1,000,000/= as being excessive and proposed a lower award of Kshs. 800,000/=. In their submissions before the lower court, the appellants had proposed the same figure of Kshs. 800,000/= while the respondent had proposed Kshs. 3,000,000/=. 14.The respondent sustained fracture of the pelvis and fracture of the right proximal fibula. She was treated at Metropolitan Hospital with an ORIF surgery of the pelvis as indicated in the medical report prepared by Dr. Cyprianus Okoth Okere. At the time of examination, the doctor noted that there was a surgical scar on the pelvis and that the implant was in situ. The doctor further noted that the proximal fibula was tender on a deep palpitation and that she walked with a limp. The doctor assessed the degree of permanent incapacity at 10%. 15.As rightly submitted by the appellants, it is trite law that in determining quantum, comparable injuries should attract comparable awards in as much as no two cases are alike. The Court of Appeal in Stanley Maore V Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR stated thus:“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 16.The award of damages is an exercise of discretion by the trial court based on the evidence before it. An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. 17.In the end, having considered the comparative jurisprudence in this area and recent decisions, I find no justification to interfere with the learned trial magistrate’s exercise of discretion in assessing the damages awarded to the respondent based on the evidence placed before her. 18.In the upshot, I do hereby make the following orders: -a.The lower court’s findings on both liability and quantum in its judgment dated 28th June 2024 are hereby upheld.b.The appeal therefore lacks merit and is hereby dismissed with costs. DATED, SIGNED, DELIVERED VIRTUALLY AND UPLOADED TO THE CASE TRACKING SYSTEM THIS 11TH DAY OF JUNE 2026.DAVID MBURUJUDGE11/06/2026