https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7630

Kiletu v Katumo (Civil Appeal E020 of 2024) [2026] KEHC 7630 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7630 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E020 of 2024 EN Maina, J May 28, 2026 Between Stephen Kioko Kiletu Appellant and Mutua Katumo Respondent (Being an appeal from the judgment of Hon. H.M. Mbati (PM) in Machakos CMCC No.E543 of 2021 delivered on 8th January, 2024) Judgment 1.In this appeal, the Appellant has challenged the whole of the lower court’s judgment delivered on 8th January 2024. In that judgment, the learned magistrate apportioned liability equally between the Appellant and the Respondent, for an accident which occurred between their motor vehicles and motor cycle respectively, on 2nd December 2020. The accident was said to have occurred at Mutituni along the Kangundo – Machakos road. 2.After finding the parties equally to blame the learned magistrate proceeded to award the Respondent general damages for pain and suffering in the sum of Kshs.1,200,000/- which left the Respondent with Kshs.600,000/- after his contribution. She also awarded the Respondent special damages in the sum of Kshs.92,510/- bringing the total award to Kshs.692,510/-. 3.A medical report relied upon by the Plaintiff to support his evidence on the injuries sustained, (report of Dr. John Mutunga Medical officer in charge of Machakos Level 5 Hospital), indicates that the Respondent was examined on 6th September 2021 and that the injuries were: 1.Blunt injury to the forehead 2.Blunt injury to low back 3.Blunt injury to left knee 4.Fracture right distal femur 5.Commuted fracture right femur 6.Dislocation of right hip joint The prognosis was that the Respondent suffered severe skeletal injuries. His right limb was shortened by approximately 2 cm and he could not use the joints of the right lower limb, leaving him with an unstable gait. The estimated degree of permanent incapacity was estimated at 20%. 4.The appellant disputes that he contributed to the accident and faults the learned magistrate for finding him guilty of 50% contributory negligence. He also impugns the general damages awarded to the Respondent and contends that the same were too high for the injuries sustained. He proposes an award of Kshs.200,000/- instead. 5.The Respondent has however supports the learned magistrate’s findings on the quantum of damages but contends that the Appellant should have been found wholly liable. There is however no cross appeal. 6.This appeal was canvassed through written submissions. Analysis and determination 7.In respect to the finding on liability, as the first appellate court, I have a duty to subject the evidence in the court below to a fresh and exhaustive scrutiny so as to arrive at my own independent conclusion. I have done so while bearing in mind that I did not see or hear the witnesses as did the magistrate – see the case of Selle & Another vs. Associated Motor Boat Company Ltd. & Others [1968] EA 123. I have also taken into account the submissions of learned Counsel for the parties, the cases cited and the law. 8.The parties each testified and called witnesses. They also produced police abstracts. Each side blamed the other for the accident. The police officer (PW1) who was called by the Respondent testified that it is the Respondent who hit the Appellant’s motor vehicle at the rear right side as it turned right to enter a petrol station. It was his evidence that the Appellant was to blame for turning without indicating. He produced a police abstract dated 4th December 2020. The Appellant however also called a police officer who stated that the Respondent’s motor cycle hit the Appellant’s motor vehicle at the rear. The police abstract which he produced was dated 3rd September 2021. The same did not apportion any blame instead stating that the matter was referred to insurance. The Respondent called one other witness (PW2) who testified that she watched the accident from a distance as she hawked bananas at the petrol station. She stated that the Appellant’s motor vehicle was being driven at a high speed and that it hit the Respondent’s motor cycle on the shoulders of the road. She blamed the Appellant for the accident. 9.It is clear from the evidence adduced by both sides that the question of who was to blame for this accident, was inconclusive. Both sides called police officers who produced police abstracts with conflicting information in regard to the cause of the accident. On the other hand, the testimonies of the Respondent and his other witness (PW2) as to causation was in stark contradiction with that of PW1. Both sides did however concede that the accident occurred and only differed with the issue of blameworthiness. 10.Faced with the conflicting and inconclusive evidence as to the cause of the accident, the best course is for the court to apportion liability equally (see the case of Lakhamshi v Attorney General [1971] E.A 118 wherein the court cited with approval the case of Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 W.L.R 1472, and held:“Once both are to blame, and there are no means of distinguishing between them, then the blame should be cast equally on each” 11.Similarly, in the case of Welch v Standard Bank Ltd [1970] E.A at page 116 & 117, Madan J, as he then was observed:“Notwithstanding that the accident probably occurred because of negligence on the part of one or the other or both drivers, there are no means to enable a choice to be made between these possibilities so that it may be said, not as mere conjecture but with a degree of assurance acceptable to a tribunal acting judicially, that as a proper inference one of these alternatives is the correct answer in fixing the blame for the collision. The court’s dilemma is there is nothing to enable it to say the accident happened in some particular way. There are no witnesses, no marks on the road, no data to strike a balance of probabilities, no usual conflict of expert evidence, no expert evidence, no evidence at all; nothing, save only speculative inferences to be gleaned from the indecisive mute testimony of the damage to the two cars or from the measurements shown in the sketch plan of the scene.………………………The collision is a fact. Any of the alternatives already mentioned may provide the right answer as to how it happened. The court’s sense of impartiality prevents the choosing of the alternatives of individual blame against either driver. It would be just to say, and it is as likely the explanation that both drivers were to blame equally as that only one of them was wholly to blame. Accidents do not happen; they are caused. It is an explanation which offers a solution of impartial practicability. This I think must be the ratio decidendi for the dictum of Denning, L.J, as he then was, in Baker v Market Harborough Industrial Co-operative Society limited (supra) at page 1476, which had been quoted with approval by Sachs, LJ, in Davison v Laggett, as recently as 7 May, 1969 (The Times):“Everyday, proof of collision is held to be sufficient to call on the two defendants for an answer. Never do they both escape liability. One of the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence the court would unhesitatingly hold that both were to blame. They would not escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame”Denning, LJ, is not alone in the field. More than a century ago, an American Judge expressed a similar view:“We cannot pass it by because it s doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, that to usurp that which is not given. The one or the other would be treason to the constitution.”…………Justice must not be denied because the proceedings before the court fail to conform to conventional rules provided, in its judgment, the court is able to discern that which is right owing to it being fair and just in the circumstances, without jeopardizing the vital task of doing justice. Provided there is no transgression of this sacred duty, the court will act justly in coming to a decision even if there is no evidence capable of procreating actual persuasion.” 12.I am not therefore persuaded that the trial magistrate misdirected herself in apportioning liability in the ratio of 50%:50%. Accordingly, I see no reason to interfere with the finding. 13.In regard to the quantum of damages, this court is guided by the principle that it cannot interfere with the award unless it is demonstrated that the learned magistrate acted on a wrong principle or took into account an irrelevant factor or did not take into account a relevant factor or short of that, that the award was either inordinately high or low as to amount a wrong estimate of the damage – see the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). 14.The nature and extent of injuries sustained by the Respondent was not disputed. In addition to the medical report and P3 form the Respondent produced other reports which speak to the severity of the injuries. I have considered the case cited by the Appellant where Kshs.800,000/- was awarded to a Plaintiff, who according to the Appellant had suffered similar injuries as those of the Respondent herein. It is instructive however that the case was decided four years ago and two years before the impugned judgment. Passage of time or inflation is a relevant factor which a court must determine in assessing damages. The learned magistrate cannot therefore be faulted in arriving at an award higher than in the case of Pestony limited & Charles Kariuki Kativo v Samuel Itonye Kagoko [2022] eKLR. I find no reason therefore to interfere with the award of damages either, save to state that the award on special damages should also have been subjected to the 50%;50% contribution and a sum of kshs.46,255 should be deducted from the total award. 15.Costs follow the course and the appeal being unsuccessful, the costs fall upon the Appellant to bear. Orders accordingly. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026.E. N. MAINAJUDGEIn the presence of:Mr. Wekesa for the RespondentNo appearance for the AppellantMary- Court Assistant/Interpreter