https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9593

Isoe v Opanga & another (Civil Appeal E121 of 2025) [2026] KEHC 9593 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9593 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E121 of 2025 AM Okutoyi, J July 2, 2026 Between Titus Moracha Isoe Appellant and David Nyakundi Opanga 1st Respondent Kefah Kerini John 2nd Respondent (Being an appeal from the Judgement of Hon. J. Nyariki, (SRM) delivered on 6th August 2025 in Kisii CMCC No. E224 of 2024) Judgment Background of the appeal 1.This appeal emanates from a suit filed in the Chief Magistrate’s court regarding a road accident that occurred on 30th of October 2023 involving a motor vehicle registration number KBL 673 S in which the Appellant was a passenger and motor vehicle registration number KCC 859N owned by the Respondent. The Respondent alleges that as a result of the accident, he sustained injuries. 2.At the trial court, the Appellant relied on two witnesses; PW1, 8xxx0 PC Kasera who narrated how the accident occurred, attributed negligence to the Respondent and produced the police abstract; and PW2, the Appellant who adopted his statement as evidence in chief. 3.The Respondent on his part had one witness; DW1, Benard Otieno, an insurance investigator at Semis Insurance who stated that the name of the Appellant was not in the police occurrence book. 4.The Magistrate at the trial court delivered a judgement on the 6th of August 2025 in which she found that the Plaintiff had failed to convince the court on a balance of probability that he was involved in the material accident. As such the suit was dismissed with costs to the Respondent. 5.Aggrieved with the decision of the trial Magistrate, the Appellant filed this instant appeal on the following summarized grounds; That the learned trial Magistrate erred in law and fact in dismissing the Appellant’s claim on the basis of an initial typographical error in the occurrence book (OB) extract, despite credible and uncontroverted evidence that the said error had been corrected by the police; failing to properly evaluate and give due weight to the evidence of the Appellant in explaining the errors in the OB; relying heavily on the Respondent’s investigations officer who had admitted under oath that he had not taken further investigations to confirm if the OB was rectified thereby had incomplete evidence not based on full disclosure; failing to appreciate the discrepancy was purely clerical, failing to invoke Article 159 (2) (d) of the Constitution, failing to assess the quantum of damages the Appellant would have been entitled to had the suit succeeded; failing to appreciate that the Respondent’s own medical report which indicated the Appellant was in an accident; and failing to appreciate that the Appellant’s identity, occurrence of the accident and issuance of the police abstract was never effectively challenged. 6.The Appellant with the reasons thereof, prayed that the appeal be allowed, the judgement of the lower court be set aside and substituted with an order that the Appellant’s suit is merited and this court assesses damages payable to the Appellant. Appellant’s Submissions 7.The Appellant supported the appeal with written submissions dated 22nd February 2026, summarizing the main issue of determination on whether the Appellant established his case against the Respondents before the trial court on a balance of probability which he argued had happened. 8.The Appellant further submitted that an accident was proved, the injuries were not disputed, that the discrepancies in the OB had been corrected and evidence through the production of a police abstract with the correct name adduced. 9.On quantum, the Appellant citing authorities proposed an award of Kshs.500,000/= as adequate compensation. Respondent’s submissions 10.The Respondent on the other side opposed the appeal and in their written submissions dated 27th February 2026, supported the trial court’s finding that the Appellant had not proved he was in the accident. The Appellant argued on whether liability was erroneous to warrant interreference which he averred that the Appellant had not proved he was in the accident, the discrepancies in the occurrence book were not cleared, the investigations by the police incomplete hence the trial court was correct. 11.On quantum of damages, the Respondent submitted that notwithstanding the averments on failure to proof negligence, the Appellant sustained soft injuries which have now healed. Citing authorities, the Respondent proposed an award of Kshs. 50,000/=. Analysis and Determination 12.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 13.Similarly, in Peter v Sunday Post Ltd (1958) EA 424. The court stated that;“Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.” 14.I have independently re-valuated and analyzed the appeal and trial record in its entirety. From the record, there is no contention that an accident did occur on 30th of October 2023 involving a motor vehicle registration number KBL 673 S and motor vehicle KCC 859 N belonging to the appellant. The attribution of 100 % liability as against the Appellant has also not been raised in this appeal although it forms an important aspect of the judgment as a whole. The main issue that the appeal has focused on is the admissibility of evidence and proof of injuries that led to the assessment of award by the trial court. 15.The main issues therefore, for the determination of this court are as follows;a.Whether the learned trial Magistrate properly evaluated the evidence relating to the Appellant as a victim of the accidentb.Whether the Appellant proved his claim on a balance of probabilitiesc.Whether the Appellant proved liability against the Respondentd.What is the comparable award for damages Whether the learned trial Magistrate properly evaluated the evidence relating to the Appellant as a victim of the accident 16.The central question before the trial court was whether the Appellant was indeed the person involved in the accident. The Appellant testified that although his name was initially entered incorrectly in the Occurrence Book, the mistake was subsequently rectified by the police. He further relied upon the Police Abstract which indicated his name. The Respondent relied on the testimony of the insurance investigating officer who stated that according to the copy of the OB available to him, no further amendment appeared. However, under cross-examination, the investigating officer conceded that he had not undertaken any further inquiries to ascertain whether the original OB had subsequently been corrected. His evidence therefore stopped at the version of the OB available to him. 17.That concession is significant as there was effectively no conclusive rebuttal to the assertions that the name had been corrected. The learned trial magistrate nevertheless treated the initial discrepancy as conclusive proof that the Appellant was not involved in the accident and that by itself overlooked the totality of the evidence. 18.Looking at the discrepancy which was “Titus Moranga” instead of “Titus Moracha”, the same is not far off as the names and phonetics are similar. Other similarities are the age of the victim, the date of the accident, the medical reports confirming the Appellant sustained injuries in a road traffic accident. All these when viewed cumulatively, substantially corroborated one another. The discrepancy therefore fell to be evaluated in the broader evidential context rather than in isolation 19.Civil liability is determined on a balance of probabilities. As was observed by the Court of Appeal in Miller vs. Minister of Pensions (1947)2 ALL ER, 372“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” 20.Similarly, in Palace Investment Ltd. V. Geoffrey Kariuki Mwenda & Another (2015) the Court emphasized that a party succeeds where his version is more probable than the opposite version. 21.The Respondent did not produce evidence that another person bearing the similar name was actually injured in the same accident. The contention remained confined to an apparent clerical inconsistency in the recording of names. Courts have consistently recognized that human errors occur in recording particulars. Such mistakes do not necessarily invalidate otherwise credible evidence where surrounding circumstances satisfactorily explains the occurrence of an event. 22.The Appellant further faults the trial court for failing to invoke Article 159(2)(d) of the Constitution. Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. While Article 159 cannot be invoked to cure substantive evidential deficiencies, it remains relevant where the court is confronted with obvious clerical or typographical mistakes that do not prejudice the opposing party. In the present case, the discrepancy concerned only several letters in the recorded name while every other identifying feature pointed to the same individual. 23.Upon my own independent evaluation of the evidence, I find that the learned trial magistrate placed undue emphasis upon the initial discrepancy in the OB while failing to adequately evaluate, the explanation tendered by the Appellant, the police officer, the Police Abstract and the medical evidence from both parties as well as the investigating officer’s admission that he had not verified whether subsequent correction had been made. That constituted a misapprehension of the evidence warranting appellate interference Whether the Appellant proved his claim on a balance of probabilitiesIt is trite that he who alleges must prove. Sections 107, 108 and 109 of the Evidence Act place the legal burden upon the claimant. 24.Section 107(1) of the Evidence Act, Cap 80 provides that: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. 25.This is further buttressed by Section 108 and 109 of the Evidence Act that provides as follows respectively;Incidence of burden.“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.”Proof of particular fact.“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”. 26.The standard however remains proof on a balance of probabilities. Considering the entirety of the evidence, I am persuaded that it was more probable than not that the Appellant was the victim of the accident pleaded. The explanation regarding the discrepancy was plausible. The surrounding documentary evidence substantially corroborated the Appellant’s case.Accordingly, I find that the Appellant discharged the burden of proof. Whether the Appellant proved liability against the Respondent 27.Having found that the Appellant proved, on a balance of probabilities, that he was the person involved in the accident, the Court must next consider whether negligence on the part of the Respondent was established. 28.The Appellant testified as to the manner in which the accident occurred and attributed negligence to the Respondent’s driver. The Respondent did not adduce eyewitness evidence to controvert that account. More importantly, the documentary evidence produced at trial materially supports the Appellant’s version. 29.First, the Police Abstract identified the Respondent’s driver as the party blamed for the accident. While it is settled that a police abstract is not conclusive proof of liability, it remains a relevant public document that the court is entitled to consider together with the other evidence on record. 30.Secondly, the Respondent’s own insurer commissioned investigations into the accident. The investigator’s report similarly attributed blame to the Respondent’s driver. Although such a report is not binding upon the Court, it constitutes an admission against interest in the sense that it emanates from the Respondent’s own investigative process and is therefore relevant evidence to be weighed alongside the rest of the record. 31.Sections 107 and 109 of the Evidence Act place the legal burden upon the Appellant to establish negligence. Upon evaluating the oral testimony together with the Police Abstract and the insurer’s investigation report, I am satisfied that the Appellant discharged that burden on a balance of probabilities. The Respondent did not place before the court sufficient evidence to displace that narrative. 32.Accordingly, I find no basis for apportionment of liability. The Respondent was properly liable for the accident. What is the comparable award for damages 33.The Appellant pleaded the following injuries: Bruises on the left hand, blunt trauma to the right ankle, physical and psychological pain, blunt trauma to the occipital region of the head, bruises on the right breast, blood loss, chest contusion and blunt trauma to the right leg. 34.The injuries were corroborated by the Appellant’s doctor upon examination on 20/2/2024. Upon re-examination by the Respondent’s doctor, it was stated in the second medical report dated 28/6/2024, that the Respondent had sustained soft tissue injuries as a result of a road accident that had healed with minimal scarring. 35.This court is therefore satisfied that the Appellant proved that he sustained soft tissue injuries. In order to determine what is the appropriate quantum, I am guided by the principles set out in the case of Boniface Waiti & another v Michael Kariuki Kamau (2007) eKLR where the courts enumerated the following;"An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered.The award should be commensurate to the injuries suffered.Awards in decided cases are mere guides and each case should be treated on its own facts and merit.Awards should not be inordinately too high or too low." 36.The Appellant cited the following authorities to support a proposed award of Kshs.500,000/=; National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) where the courts awarded Kshs. 300,000/= for similar injuries; and Francis Ochieng’& another v. Alice Kajimba (2015) where an award of Kshs 350,000/= was given for similar injuries. 37.The Respondent on their other hand proposed an award of Kshs. 50,000/= citing the following authorities; HB (Minor suing through mother & next friend DM) v Jasper Nchonga Magari and another (2021) eKLR where the courts awarded Kshs. 60,000 for soft tissue injuries and Sarah Karungari Munene v Aestar Secondary School (2020) eKLR where the courts awarded Kshs. 40,000/= for blunt injuries. 38.This court has also done its own analysis on comparative awards as follows; Lilian Anyango Otieno v Philip Mugoya Ogila (2022) EKLR where the high court substituted an award of Kshs. 100,000/= with Kshs. 150,000/=for soft tissue injuries. 39.Guided by quantum principles, the range of awards given in the cited authorities for soft tissue injuries, as well as the Appellant’s own injuries and medical evidence adduced, this court is henceforth awarding Kshs 150,000/= which it deems as fair compensation. 40.For special damages, the Appellant proved expenses of Kshs. 7,050/. This courts therefore awards as such. Disposition 41.Accordingly, I make the following orders;a.This appeal succeeds.b.The Judgement dismissing the Appellant’s suit is hereby set aside.c.Judgment is entered in favour of the Appellant on liability as against the Respondent at 100%.d.The Appellant is awarded Kshs. 150,000/= for general damages with intereste.Special damages of Kshs. 7,050/=.f.The Appellant shall have the costs of the Appeal as well as that in the trial court.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026.A.M. OKUTOYIJUDGEIn the Presence of:Ms. Oloo for the AppellantMs. Kebaya for the RespondentRuth Mokeira-Court Assistant