Nzuki v Katuvi (Civil Appeal 113 of 2025) [2026] KEHC 9772 (KLR) (12 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCCA 113 OF 2025** **STEPHEN KIOKO NZUKI…………………………….……….. APPELLANT** **VERSUS** **THADDEUS KIIO KATUVI……………………….…..…..…..RESPONDENT** *(Being an appeal from the Judgment of Hon. Daffline Nyaboke Sure (PM) in* *Kangundo CMCC NO. E008 of 2022 delivered on 8/4/2025)* **JUDGMENT** 1. The appellant was the plaintiff in Kangundo CMCC NO. E008 of 2022 where he sued the respondent seeking general damages for pain and suffering and special damages of Kshs.3,040 for injuries the appellant sustained when he was allegedly knocked down by the respondent’s motor vehicle registration number KAH 324Q. 2. The cause of action was a road traffic accident that allegedly occurred on 6th November 2021 along the Malaa–Thome road, in which the appellant, a pedestrian, was knocked down and injured by a lorry registration number KAH 324Q belonging to the respondent. 3. The trial court ruled that the appellant had failed to discharge the burden of proof on a balance of probabilities. 4. The trial court further found that there was no credible evidence that the accident occurred on the claimed date, noting inconsistencies such as treatment notes dated 7th November 2021 while the accident was alleged to have happened on 5th or 6th November 2021, the failure to call the appellant’s wife who had allegedly identified the lorry, and the investigating officer’s uncertainty about the accident’s occurrence. 5. Consequently, the trial court dismissed the appellant’s case. Despite the dismissal, the court assessed that it would have awarded Kshs 450,000 in general damages and Kshs 5,150 in special damages if liability had been proved. 6. The trial court made no order as to costs because the respondent did not appear in court. 7. The appellant has appealed against the said judgment on the following grounds; 8. ***THAT the Learned trial Magistrate erred both in law and fact by dismissing the Plaintiffs' suit without considering the Plaintiffs' Evidence and Submissions on record.*** 9. ***THAT the Learned trial Magistrate erred in law and in fact in failing to analyze all the evidence availed at the trial and award the Plaintiff the relief sought in the Plaintiff.*** 10. ***THAT the Learned trial Magistrate erred in law and in fact in failing to find that the Plaintiff had proved his case on a Balance of Probabilities.*** 11. ***THAT the Learned trial magistrate erred in law and fact by making a finding that was contradictory to the Appellant's evidence.*** 12. ***THAT the learned trial Magistrate erred in law by dismissing the Plaintiff's suit.*** 13. The parties filed written submissions as follows; The Appellant submitted that he is challenging the judgment delivered on 8 April 2025 by the Chief Magistrate’s Court at Kangundo, which dismissed their suit for injuries sustained in a road traffic accident on 5 November 2021. 14. As a first appeal, the Appellant urges the High Court to re-evaluate the evidence afresh, as mandated by Section 78 of the Civil Procedure Act and established case law such **as Bwire vs Wayo and Selle vs Associated Motor Boat Co.,** bearing in mind that the trial court had the advantage of seeing the witnesses. 15. The Appellant’s primary contention is that the trial magistrate erred in dismissing the suit despite tangible evidence proving the Respondent’s full liability. 16. The Appellant testified that he was lawfully walking beside the road when a lorry, registration KAH 324Q, knocked him down. 17. The Respondent called no witnesses to challenge this account, meaning the Appellant’s evidence went unrebutted. 18. The police abstract from KBC Police Station confirmed that an accident occurred and listed the lorry driver, Isaac Mathendu, as a witness. 19. The Appellant argues that the driver’s failure to appear in court to explain how the accident happened is itself an indication of guilt. 20. Applying common sense principles from **Stapley vs Gypsum Mines Ltd,** the Appellant submits that the trial court should have held the Respondent fully liable, and therefore prays that this court set aside the lower court’s finding on liability and award 100% liability in the Appellant’s favour 21. On the issue of quantum, the Appellant notes that although the trial court dismissed the suit entirely, it stated obiter that it would have awarded Kshs. 450,000 in general damages. 22. The Appellant argues that this figure is inordinately low and unreasonable given the nature of his injuries, which included a fractured right medial malleolus, blunt injuries to the right leg and hip, and bruises on the hip and elbow. 23. Relying on the principles from **Butt v Khan**, that an appellate court will interfere where an award is based on wrong principles or is an entirely erroneous estimate, the Appellant cites two recent authorities: **Savanna International Ltd v Muka (Naivasha HCCA No. 31 of 2018) and Epuet v Kioko & 2 Others (Meru HCCA No. 154 of 2021).** 24. Based on these comparable cases and the principle of stare decisis, the Appellant humbly submits that this honourable court should award Kshs. 700,000 as general damages. 25. The Appellant concludes by praying that the judgment of the lower court be set aside in its entirety, that liability be assessed at 100% in his favour, and that general damages be enhanced to Kshs. 700,000, attaching the cited authorities in support of these submissions 26. The respondent’s submissions argue that the appellant failed to prove liability, as the evidence presented at the trial court was inconsistent and insufficient. 27. The appellant claimed the accident occurred on 6th November 2021, but the police report indicated it was reported on 8th November 2021 and registered under a different date. 28. Additionally, the only person who allegedly identified the offending vehicle was the appellant’s wife, who was never called as a witness and did not provide a statement to the police, making her purported identification hearsay and inadmissible. 29. Consequently, the respondent maintains the trial court correctly dismissed the suit. 30. On quantum, the respondent submits that without proof that the accident happened as alleged, the injuries claimed cannot be linked to any incident caused by the respondent. 31. The respondent therefore prays that the appeal be dismissed with costs. 32. The following are the issues for determination in this appeal; 33. ***Whether the trial magistrate erred in failing to properly evaluate the evidence on record, thereby arriving at an erroneous finding.*** 34. ***Whether the appellant proved liability against the respondent to the required standard.*** 35. ***Whether the appellate court should interfere with the trial court's obiter assessment of quantum.*** 36. This is the first appeal against the judgment delivered on 8th April 2025 in Kangundo CMCC No. E008 of 2022. 37. As a first appellate court, it is my duty to re-evaluate, re-assess, and re-analyze the evidence that was before the trial court and arrive at my own independent conclusions, while bearing in mind that the trial court had the advantage of hearing and seeing the witnesses. 38. The duty of a first appellate court was well articulated in the locus classicus case **of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, where the court held that an appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions. 39. Having carefully re-evaluated the evidence on record, I find that the trial magistrate erred in dismissing the appellant's suit. 40. The appellant testified as PW1 that on 6th November 2021, he was lawfully walking as a pedestrian along the Malaa-Thome road when he was knocked down by the respondent's lorry registration number KAH 324Q. 41. He produced a police abstract (P.Exh 2) from KBC Police Station, which confirmed that an accident occurred on the said date involving the subject motor vehicle. 42. The police abstract is a crucial piece of documentary evidence, the police abstract being prima facie evidence not rebutted can be relied upon as proof of ownership and the occurrence of the accident in civil cases, where the standard of proof is on a balance of probabilities and not beyond reasonable doubt as in criminal cases. 43. In the present case, the respondent did not adduce any evidence whatsoever to challenge the contents of the police abstract or to rebut the appellant's testimony. 44. The respondent did not even appear in court, let alone call the driver or any other witness to explain how the accident occurred. 45. The trial magistrate placed undue weight on the fact that the appellant's wife, who allegedly identified the lorry, was not called as a witness. 46. However, it is well established that the burden of proof can be discharged without calling every possible witness. 47. The treatment notes dated 7th November 2021 do not, by themselves, negate the fact that an accident occurred on 5th or 6th November 2021. It is not uncommon for an injured person to seek treatment a day after an accident, especially if the accident occurred late in the evening or in circumstances where immediate medical attention was not accessible. 48. The trial court ought to have considered the totality of the evidence rather than focusing on peripheral inconsistencies. 49. Having found that the appellant proved liability against the respondent, I now turn to the issue of quantum of damages. 50. Although the trial court dismissed the suit, it proceeded to assess the damages it would have awarded and stated that it would have awarded Kshs 450,000 as general damages for pain and suffering and Kshs 5,150 as special damages. 51. The principles upon which an appellate court can interfere with an award of damages are well settled. 52. In **Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5**, the Court of Appeal held that an appellate court will only interfere with an award of damages if it is so inordinately high or low as to represent an entirely erroneous estimate, or if the trial court proceeded on wrong principles or misapprehended the evidence. 53. The appellant urged this court to enhance the general damages to Kshs 700,000, but upon my own re-evaluation and considering the principle that comparable injuries should attract comparable awards, I find that the trial court's assessment of Kshs 450,000 is not inordinately low so as to warrant interference by this court. 54. The trial magistrate had the advantage of considering the nature and extent of the injuries, which included a fractured right medial malleolus, blunt injuries to the right leg and hip, and bruises on the hip and elbow. 55. The figure of Kshs 450,000 falls within the range of awards that have been made by courts for comparable injuries. 56. On special damages, the appellant pleaded Kshs 3,040 but the trial court assessed Kshs 5,150 based on the evidence adduced. Since the respondent did not challenge the proof of special damages and the trial court made a finding in favour of the appellant on the proved sum, I uphold the special damages of Kshs 5,150. 57. Regarding liability, I find no evidence of contributory negligence on the part of the appellant. The respondent did not adduce any evidence to suggest that the appellant contributed to the accident. 58. The appellant testified that he was walking beside the road when he was knocked from behind. This evidence remained uncontroverted. 59. In the upshot, I make the following orders; 60. ***That the appeal is hereby allowed*** 61. ***That the respondent is held 100% liable for the accident.*** 62. ***That the judgment delivered on 8th April 2025 in Kangundo CMCC NO. E008 of 2022 dismissing the appellant's suit is hereby set aside and substituted with judgment in favour of the appellant.*** 63. ***General damages for pain and suffering are assessed at Kshs 450,000.*** 64. ***Special damages are assessed at Kshs 5,150.*** 65. ***Total award: Kshs 455,150.*** 66. The appellant shall have costs of the suit in the lower court and costs of this appeal. 67. Interest on the general damages shall accrue at court rates from the date of judgment in the lower court (8th April 2025) until payment in full. 68. Interest on special damages shall accrue at court rates from the date of filing suit until payment in full. 69. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026**  **ASENATH N. ONGERI** **JUDGE** **In the presence of** No appearance for the Appellant No appearance for the Respondent Chrispin - Court Assistant