Twinkids Academy & another v Wanyonyi (Civil Appeal E1147 of 2024) [2026] KEHC 8249 (KLR) (Civ) (11 June 2026) (Judgment)

Twinkids Academy & another v Wanyonyi (Civil Appeal E1147 of 2024) [2026] KEHC 8249 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8249 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1147 of 2024 BW Murunga, J June 11, 2026 Between Twinkids Academy 1st Appellant Charles Mwangi 2nd Appellant and Bonface Sifuna Wanyonyi Respondent (Being an appeal from the Chief Magistrate’s Court at Milimani, Civil Suit No. E1233 of 2022, against the Judgment delivered on 5th September 2024 by Hon. Wangari Mbulikah (PM)) Judgment 1.This is an appeal filed pursuant to Section 75 of the Civil Procedure Act (Cap 21, Laws of Kenya) by Twinkids Academy and Charles Mwangi, the 1st and 2nd Appellants respectively, against the Judgment of the Chief Magistrate's Court at Milimani (Hon. Wangari Mbulikah, PM) delivered on 5th September 2024 in Civil Suit No. E1233 of 2022. 2.The Respondent, Bonface Sifuna Wanyonyi, was the plaintiff before the trial court, where he claimed damages arising from a road traffic accident that occurred on 2nd September 2021 along the Eastern Bypass in Nairobi, involving the Appellants’ school bus, motor vehicle registration number KCQ 715U, and his motorcycle, registration number KMFT 475B. 3.Before the trial court, the Respondent testified that he was riding his motorcycle carefully on his extreme left side of the Eastern Bypass when the school bus, travelling from the opposite direction, suddenly and without any signal or warning executed a right turn, encroached into his lane, and struck him, causing severe bodily injuries. These included a midshaft left femoral fracture, intertrochanteric fracture, bruises and swelling of the left knee, facial bruises, pain on the left leg, difficulty in walking, and an inability to perform heavy duty, with a resultant permanent incapacity assessed at 20%. 4.After considering the evidence and submissions, the trial court found the Appellants 80% liable for the accident, with the Respondent bearing 20% contributory negligence. The court awarded general damages for pain and suffering of Kshs. 1,500,000, diminished earning capacity of Kshs. 400,000, future medical expenses of Kshs. 200,000, and special damages of Kshs. 21,605 bringing the total, subject to the liability apportionment, to over Kshs. 2,121,605. 5.Aggrieved by the whole of that judgment, the appellants filed the present appeal. Appellants’ Submissions 6.The Appellants, through Arusei & Co. Advocates, contend that the learned trial magistrate erred fundamentally in finding them 80% liable for the accident in the absence of credible or corroborated evidence establishing negligence. They submit that the police officer who testified as PW1, Officer Jackline Naeku, admitted in cross-examination that she was not the investigating officer in the matter, that she had not visited the accident scene on the day of the collision, and that there was no sketch map to establish the point of impact or the dynamics of the collision. 7.The Appellants further argue that the police abstract produced before the trial court showed the matter as pending investigation and did not attribute blame to either party. They rely on the evidence of DW1, Frashiah Njeri Kariuki, the director of the 1st Appellant, who proceeded to the scene after being called by the driver and found the scene still intact. 8.DW1 stated that the point of impact was on the passenger door of the bus, which the Appellants argue is inconsistent with the Respondent’s account that the bus turned directly across his path. The Appellants urge this court to find that the Respondent failed to discharge the legal burden of proof under Sections 107, 108 and 109 of the Evidence Act (Cap 80, Laws of Kenya) and to hold that liability should be attributed entirely to the Respondent, or alternatively that the suit be dismissed in its entirety. 9.On quantum, the Appellants submit that the award of Kshs. 1,500,000 for pain and suffering is manifestly excessive and inconsistent with comparable precedents. They rely on David Kimathi Kaburu v Dionisius Mburug Itiari [2017] eKLR, where the High Court upheld an award of Kshs. 630,000 for a fragmental midshaft femur fracture and intertrochanteric fracture, and Fred Mohinga Kipkigiya v David Agreey Zimbiru [2011] eKLR where an award was reduced to Kshs. 650,000, and they propose Kshs. 400,000 as adequate. 10.On diminished earning capacity, the Appellants submit that the award of Kshs. 400,000 was made without any evidentiary foundation. The Respondent produced neither employment records, payslips, nor a valid riding licence, and Dr. Okere’s medical report did not specifically opine that the Respondent was incapable of resuming boda boda operations. 11.On future medical expenses, they point to the report of Dr. P.M. Wambugu, which estimated the cost of removing the metal implants at Kshs. 75,000 in a medium-cost private hospital, and argue that the trial court awarded Kshs. 200,000 without explaining the departure from the lower estimate. 12.Finally, the appellants correctly submit that receipts tendered in evidence established only Kshs. 20,790 in special damages, not the Kshs. 21,605 pleaded and awarded. Respondent's Submissions 14.The Respondent, through Musili Mbiti Advocates LLP, raises as a preliminary issue that the instant appeal is incompetent. He contends that the Record of Appeal filed on 27th June 2025 lacks the typed proceedings of the trial court, a copy of the trial court judgment, and the decree, documents whose absence materially hampers this court’s ability to discharge its duty as the first appellate court. 15.The Respondent relies on Jayant Kumar Vrajlal Shah & Another v Midco Holdings Limited & Another [2003] for the proposition that an appeal attended by such defects ought to be struck out. 16.On liability, the Respondent submits that the trial court's findings are well-supported by the evidence and ought to be upheld. He draws this court's attention to the police abstract dated 16th November 2021, exhibited at page 10 of the Record of Appeal, which at Paragraph 7 conclusively attributed blame for the subject accident to the Appellants’ vehicle. 17.The Respondent further submits that DW1 was not an eyewitness to the collision and therefore lacked personal knowledge of how it occurred, and that the 2nd Appellant, the driver of the school bus, was never called to testify, leaving the Respondent’s direct account of the circumstances of the collision unchallenged and uncontroverted. 18.On quantum, the Respondent urges this court to uphold all the awards made by the trial court. He submits that the injuries are grievous, and that the award of Kshs. 1,500,000 is in fact conservative when measured against comparable authorities. He relies on Lucy Waruguru Gatundu v Miriam Nyambura Mwangi [2017] eKLR, where the High Court awarded Kshs. 2,000,000 for comparable injuries, and Margaret Wothaya Kirweya & Another v James Muchai Muchiri [2020] eKLR, where the Court of Appeal upheld an award of Kshs. 1,800,000 for an intertrochanteric femoral fracture. 19.On diminished earning capacity, the Respondent relies on Dr. Okere's testimony confirming the Respondent’s inability to work and proposes a global award of Kshs. 400,000 as the minimum appropriate compensation. 20.On future medical expenses, the Respondent notes that Dr. Okere was the only medical expert who testified and whose report was formally admitted in evidence. The Appellants' expert, Dr. Wambugu, neither testified nor had his report formally produced before the court, rendering it impermissible to prefer his lower estimate. Issues for Determination 21.The following issues arise for determination in this appeal:i.Whether the instant appeal is competent before this court.ii.Whether the trial court erred in apportioning 80% liability to the appellants.iii.Whether the trial court erred in the quantum of damages awarded. Analysis 22.The threshold question is the nature and scope of this court’s duty as the first appellate tribunal. In Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, the court held that a first appellate court must re-evaluate, re-analyse and re-examine the evidence on the record of the lower court and arrive at its own independent conclusions, always bearing in mind that it had no opportunity to see or hear the witnesses testify. 23.This court is therefore not bound to follow the trial court's findings of fact if it is satisfied that the trial court failed to take account of particular circumstances or probabilities material to the assessment of the evidence, or if the conclusions drawn are inconsistent with the evidence in the case generally. 24.However, as the Court of Appeal cautioned in Mkube v Nyamuro [1983] KLR 403, an appellate court will not normally interfere with a finding of fact by a trial court unless that finding is based on no evidence, on a misapprehension of the evidence, or where the trial court demonstrably acted on wrong legal principles. With these guiding principles in mind, I turn to the issues raised. 25.On the preliminary issue of competency, the Respondent’s concern is legitimate and deserves careful attention. An incomplete record of appeal is not a trivial irregularity. Where the lower court’s proceedings, judgment and decree are absent, a first appellate court is plainly impaired in its ability to independently and comprehensively evaluate the evidence that was before the trial court. 26.That is a serious deficiency. That said, the material before this court is not entirely bereft of the necessary content. The parties have filed detailed submissions at both levels that set out the evidence adduced, the witnesses who testified, the positions taken, and the findings of the trial court with sufficient particularity. No irreversible prejudice to the Respondent from proceeding on the merits has been demonstrated. 27.I am guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act (Cap 21, Laws of Kenya), which requires that the court handle matters justly, efficiently and without undue formalism where the interests of justice so permit. In those circumstances, and not without observing that parties and their advocates bear the responsibility for filing complete records, I find that the deficiency in the Record of Appeal is not so fundamental in the present instance as to warrant striking out the appeal. The preliminary objection is overruled, and the appeal shall be determined on its merits. 28.Turning to liability, it is necessary to restate the applicable legal principles. In an action founded on negligence, it is the plaintiff who bears the legal burden of proof. He must establish that the defendant owed him a duty of care, that the duty was breached, and that the breach caused the injury suffered. 29.In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, the court stated in unambiguous terms that there is no liability without fault. It was held that:“There is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence”. 30.Therefore, a plaintiff must prove some negligence on the part of the defendant before liability can attach. The mere occurrence of an accident does not, without more, constitute proof of negligence. The evidence must point to a specific act or omission on the part of the defendant that amounted to a failure to exercise reasonable care in the circumstances. The standard of proof remains proof on a balance of probabilities, meaning the plaintiff's version must be more probable than not. 31.Against this legal framework, the court must evaluate the evidence that was before the trial court. On the Respondent’s side, Bonface Sifuna Wanyonyi testified as PW3, giving a direct and first-hand account of the collision: that he was riding his motorcycle on his extreme left side of the road, properly attired with a helmet and reflector jacket, when the school bus, approaching from the opposite direction, executed a sudden right turn without signalling, crossed into his lane, and struck him. 32.On the Appellants’ side, only one witness was called, DW1, Frashiah Njeri Kariuki, the director of the 1st appellant. DW1 conceded on cross-examination that she was not at the scene at the time the accident occurred, she arrived only after being contacted by the driver. Her account that the motorcycle struck the bus while trying to join the road from a junction was therefore not drawn from personal observation but constituted an inference made upon her arrival at the scene or from what she was told by the driver. 33.On the evidence, the Respondent’s direct and uncontroverted eyewitness testimony of the circumstances of the collision stands on a qualitatively stronger footing than DW1’s reconstructed account. 34.The absence of the 2nd Appellant from the witness stand casts a long shadow over the Appellants’ case on liability. The 2nd Appellant was the driver of the school bus on the material date. He was a named defendant and a party to the proceedings. The specific allegations of negligence were directed squarely at his conduct. He was the only person, other than the Respondent himself, who was present and directly involved in the collision. Yet he did not testify. 35.In Kimani (suing as the Administratrix of the Estate of Amos Kanina Kimani (Deceased) –v- Mwangi (Civil Appeal 120/2021) (2024) KEHC 2434 KLR where the court stated inter-alia that:“In all adversarial legal system like ours, a party undermines his case drastically by not calling or failing to call witnesses……..” 36.Therefore, the failure to call a witness who is centrally and uniquely placed to speak to the matters in dispute warrants an adverse inference under Section 108 of the Evidence Act that had such a witness been called, his evidence would not have assisted the case of the party who chose to withhold him. The consequence is that the Respondent’s account of how the accident occurred remained, in material respects, unchallenged and uncontroverted. 37.On the police abstract, both parties produced abstracts, and there was a conflict about their content. The Respondent produced an abstract dated 16th November 2021 which, at Paragraph 7, attributed blame for the accident to the appellants’ vehicle. While a police abstract is not determinative of civil liability, it is a document prepared in the ordinary course of law enforcement duty and carries persuasive evidential weight. The trial court was entitled to take it into account, as it did, in arriving at its finding on liability. 38.The appellants make much of the point of impact, that the bus was struck at the passenger door, as evidence that the motorcycle ran into a stationary or near-stationary vehicle rather than one that had turned across its path. This is a factual inference that deserves consideration, but it does not bear the weight the Appellants ascribe to it. 39.A vehicle that executes a right turn from the oncoming lane into the path of traffic travelling in the opposite direction would, by the geometry of the manoeuvre, present its side including the passenger door to the approaching motorcycle. The point of impact is not, therefore, necessarily inconsistent with the Respondent’s version of events. 40.Moreover, the Respondent admitted in cross- examination that the collision was effectively head-on, and there were questions raised about his speed and his inability to produce a valid riding licence. A motorcycle rider on a busy urban bypass road bears a duty to ride with due care and at a speed that permits him to react to reasonably foreseeable hazards. The trial court assigned 20% contributory negligence to the Respondent, reflecting these considerations. 41.Having re-evaluated the totality of the evidence,I am satisfied that the trial court’s apportionment of 80% liability against the Appellants and 20% against the Respondent is well-founded and is not displaced by the grounds advanced in this appeal. Issue ii is resolved against the appellants. 42.On the quantum of general damages for pain and suffering, the established principle is that comparable injuries should, as far as possible, attract comparable awards. As articulated in Stanley Maore v Geoffrey Mwenda (CA No. 147 of 2002) [2004] eKLR, where it was stated that:“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.” 43.However, the threshold for appellate interference is high as the Court of Appeal held in Butt v Khan [1981] KLR 349: an appellate court may interfere with a damages award only if it is so inordinately high or low as to represent a wholly erroneous estimate of the damage. 44.The Respondent sustained a midshaft left femoral fracture, an intertrochanteric fracture, bruising and swelling of the left knee, facial bruises, ongoing pain, difficulty in walking, an inability to perform heavy duty, and a permanent incapacity assessed at 20%. These are serious orthopaedic injuries with lasting functional consequences. 45.The Respondent’s comparable authorities demonstrate the applicable range where in Margaret Wothaya Kirweya & Another v James Muchai Muchiri [2020] eKLR, the Court of Appeal upheld an award of Kshs. 1,800,000 for a comparable intertrochanteric femoral fracture and in Lucy Waruguru Gatundu v Miriam Nyambura Mwangi [2017] eKLR the High Court awarded Kshs. 2,000,000 for similar injuries. 46.The trial court’s award of Kshs. 1,500,000 falls at the conservative end of this range. It cannot in any sense be characterised as inordinately excessive, and the grounds for interference are not established. The appeal on general damages fails. 47.On diminished earning capacity, the law recognises that where specific income cannot be precisely established, a court may make a global award having regard to all the relevant circumstances of the case. 48.There is no prescribed formula for assessing damages for lost or diminished earning capacity, and a global award approach is appropriate where specific income figures are not ascertainable, provided the court takes into account relevant factors including the claimant’s age, the extent and permanence of the disability, and the nature of the work the claimant undertook. 49.The Respondent was 28 years old at the time of the accident and has a confirmed 20% permanent incapacity with an assessed inability to perform heavy duty. His occupation as a boda boda operator was not challenged in cross-examination, and Dr. Okere confirmed the physical limitations arising from his injuries. Although no documentary proof of income was produced, the global award of Kshs. 400,000 arrived at by the trial court is modest, measured, and is not demonstrably disproportionate to the circumstances. I find no ground for interference. 50.On future medical expenses, the position is clear. Such expenses must be pleaded and proved. However, in Pascal IhaGarama v Jackson Njeru Njoka [2019] eKLR, it was held that “....even if not pleaded, future medical expenses can still be awarded if medical reports prove that the same is necessary.” 51.Dr. Okere, who was formally produced as a witness and cross-examined, testified that the cost of removing the metal implants at a private hospital would be Kshs. 200,000. The Appellants’ expert, Dr. Wambugu, prepared a report estimating a lower figure of Kshs. 75,000 to 85,000 but was not called to testify, and his report was never formally admitted as an exhibit before the trial court. 52.A court cannot, in the discharge of its fact-finding function, prefer the unsworn and unadmitted contents of a document over the sworn and cross-examined testimony of a witness. The award of Kshs. 200,000 for future medical expenses is accordingly upheld. 53.One aspect of the appeal succeeds, albeit narrowly. On special damages, the Respondent pleaded Kshs. 21,605 as special damages but established by receipts produced in evidence only Kshs. 20,790. Special damages must not only be specifically pleaded but must also be strictly proved, and no award may be made in excess of the sum established by evidence. The award of special damages is accordingly varied from Kshs. 21,605 to Kshs. 20,790. Orders 54.In the premises, the court makes the following orders:a.The preliminary objection on competence of the appeal is dismissed.b.The appeal on liability is dismissed. The trial court’s apportionment of 80% liability against the Appellants and 20% contributory negligence against the Respondent is upheld.c.The appeal on general damages for pain and suffering is dismissed. The award of Kshs. 1,500,000 is upheld.d.The appeal on diminished earning capacity is dismissed. The award of Kshs. 400,000 is upheld.e.The appeal on future medical expenses is dismissed. The award of Kshs. 200,000 is upheld.f.The award of special damages is varied from Kshs. 21,605 to Kshs. 20,790 being the sum proved by receipts and which is a minimal difference.g.Interest on general damages shall accrue at court rates from the date of the trial court judgment. Interest on special damages shall run from the date of filing of the suit in the lower court.h.Costs of this appeal are awarded to the Respondent. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF JUNE, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence ofN/A for the AppellantN/A for the RespondentKevin Babu - Court Assistant