https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10830

Omaye v Meitekini (Civil Appeal E071 of 2025) [2026] KEHC 10830 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10830 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E071 of 2025 JR Karanja, J July 14, 2026 Between Victor Omaye Appellant and Faith Lanoi Meitekini Respondent (Being an appeal from the Judgement and/or decree of the Resident Magistrates ’s Court at Oyugis delivered by Hon. Cynthia Chepkoech Cheruiyot RM on 5th November, 2025 in Oyugis CMCC No. 22 of 2020) Judgment 1.The Memorandum of Appeal dated 28th November, 2025 indicates that this an appeal arising from the judgment of the Resident Magistrate at Oyugis delivered on 5th November, 2025 in CMCC No.22 of 2020, in which the appellant; Victor Omaye, was the defendant and the respondent; Faith Lanoi Meitekini, was the plaintiff. 2.As per the plaint dated 3rd February 2020, the suit was a claim for loss and damages resulting from a road traffic accident which occurred on the 23rd June 2018, along the Sentasori-Miruka road at Senta Sori involving the defendant/appellants’ motor vehicle No.KCC 589E in which the plaintiff/respondent was traveling as a passenger and a motor cycle Reg. No.KMEE 582S. 3.It was pleaded that on the material date the defendant’s motor vehicle was so negligently driven, managed and/or controlled such that it went out of control, veered off its lane and collided with the motorcycle, thereby causing severe bodily injuries to the plaintiff/respondents who blamed the defendant for the accident and prayed for judgment against him for general and special damages together with costs of the suit and interest. 5.In his statement of defence dated 29th May 2020, the defendant/appellant denied the claim and contended that if the alleged accident occurred than it was occasioned by the plaintiff’s reckless, negligent and/or careless acts or omissions and those of the owner or/and rider of the motorcycle. 6.The defendant therefore prayed for the dismissal of the plaintiff’s claim with costs and filed a third party notice dated 20th July 2021, against the owner/rider of the motorcycle. One Wycliffe Peter Opima, claiming indemnity and/or contributing respecting the plaintiff’s claim against him (defendant). 7.The third party failed to enter appearance and/or file a statement of defence hereby prompting the defendant to request for judgment against him on 9th June 2022 pursuant to the request, the court entered interlocutory judgment against the third party on 14th June 2022. 8.The matter therefore proceeded to hearing as between the plaintiff/respondent and the defendant/appellant. 9.After a full hearing, the trial court rendered its impugned judgment effectively on the 5th November, 2025 in favour of the plaintiffs/respondent against the defendant/appellant for general damages in the sum of kshs.150,000/- and special damages in the sum of kshs.6,500/- adding up to a total of kshs.156,500 together with costs and interests. 10.Being aggrieved by the outcome, the appellant proffered the six(6) grounds of appeal set out in the memorandum of appeal. 11.His major complaint was on liability and apportionment thereof as between the plaintiff/respondent and himself and between himself and the third party. He raised no issue or substantial issue on the quantum of damages. 12.So, this appeal is essentially on liability and was argued by way of written submissions filed herein on behalf of the appellant by KRK Advocate LLP and on behalf of the responsibility by Ben K. Gichana & Co. Advocates. It was the duty of this court at this point to reconsider the evidence and arrive at its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses (see, Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123). 13.Accordingly, consideration was given to the evidence adduced by the plaintiff (PW3) and her witnesses, PC Benard Kebaya (PW1) and Dr. Peter Morebu Momanyi (PW2) as well as that of the driver of this appellant’s ill-fated Motor vehicle, Shedrack Kichongi (DW1). 14.From the evidence, the occurrence of the accident was not a disputed factor or a substantially disputed factor. 15.Also not disputed was the fact that the plaintiff (PW3) was a fare paying passenger in the defendants ill-fated public service vehicle. Therefore, her alleged contribution to the occurrence of the accident was clearly farfetched or a matter of wishful thinking by the defendant. 16.In deed, the defendant’s pleadings and evidence did not in actual sense direct culpability towards the plaintiff but rather a third party who appeared not to have participated in this matter although the defendant obtained an interlocutory judgment against him for contribution and/or indemnity. 17.What clearly came out as the basic issue for determination in this matter was the question of liability as between the plaintiff/respondent and the defendant/appellant and not as between the defendant/appellant and the third party. 18.In any event the third party was not enjoined in this appeal as a respondent. 19.Perhaps this explains the finding of full liability (100%) against the defendant/appellant by the trial court. In that regard, this court is in agreement with the trial court as there was no scintilla of evidence laying blame upon the plaintiff for the occurrence of the accident and as stated hereinabove, the plaintiff as a passenger was incapable of shouldering any blame for the accident, unless there was credible and sufficient evidence to show that she deliberately distracted the driver of the vehicle or engaged the driver in an endless banter such that he failed to properly control the vehicle or lost necessary concentration on the road and caused the accident. 20.The plaintiff attributed the accident to the recklessness of the appellant’s driver (DW1) in the manner of driving the vehicle at the material time. The driver (DW1) did not blame the plaintiff for the accident but rather a motorcycle rider who allegedly was overtaking at a sharp corner while at a high speed thereby hitting the vehicle’s front door. The plaintiff however, indicated that it was the appellant’s vehicle which hit the motorcycle while the motorcycle was on the opposite side of the road. 21.The evidence against the appellant’s driver (DW1) was credible and overwhelming in establishing and proving that he was fully to blame for the accident vis-à-vis the plaintiff. Therefore, grounds one(1), two(2), four(4) and five(5) of the memorandum of appeal are unsustainable and are hereby overruled and dismissed. 22.On ground six(6), the principles applicable for award of general damages were reiterated by the Court of Appeal in the case of Catholic Diocese of Kisumu Vs Sophia Achieng Tete (2004) 2KLR, where it was stated:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate”. 23.In Kitavi Vs Coast Bottlers Ltd [1985]KLR 470, the Court of Appeal stated that:-“It is now settled law that what the appellant was entitled to was a reasonable compensation assessed with moderation and conformity with the general method of approach, local courts have taken. Guidelines and brackets for various injuries are useful aids to some hope of consistency but awards will very much depend on the facts of each case .................”. 24.In this case, the medical report indicated that the plaintiff/respondent suffered multiple severe soft tissue injuries that were expected to fully heal with time. In that regard the trial court awarded a sum of kshs.150,000/- which in the opinion of this court was moderate and in conformity with the general method of approach in assessing general damages for pain and suffering. There was nothing to show that wrong principles were applied by the trial court in awarding the amount. Therefore, grounds six(6) of the appeal is absolutely unsustainable. 25.As to ground three(3), it is apparent that the trial court did not take into consideration the alleged contribution of a third party to the accident and was indeed entitled to go for the reason that although a third party notice was issued there was insufficient evidence of service of the same upon the third party for purposes of third party proceedings. As a result, the interlocutory judgment purportedly entered against the third party was erroneous as he was not properly enjoined in the suit and could therefore not have been a party to the proceedings between the plaintiff/respondent and the defendant/appellant which could not be and did not serve as a formal proof vis-à-vis the interlocutory judgment. 26.Even if the third party notice was indeed properly served and an interlocutory judgment was obtained on its strength by the defendant/appellant against the third party, then it was incumbent upon the defendant/appellant to pursue his claim against the third party independent of the plaintiff, claim against him for which the impugned judgment was entered in favour of the plaintiff/respondent against himself on account of his driver’s negligent acts and omissions. In any event, the plaintiff’s evidence in this case overruled the defendant’s allegation that a third party contributed to the accident. 27.Further, the judgment or interlocutory judgment purportedly entered on 14th June 2022 was not specific as to whether it was against the defendant or the third party or both. Be that as it may, a third party notice is normally issued pursuant to the provisions of Order 1 Rule (15) of the CPR. If a third party upon being served fails to make an appearance within the prescribed period of time he would be deemed to admit the validity of the decree obtained against the defendant, whether by consent or otherwise, and his own liability to contribute or indemnify to the extent claimed in the third party notice (see, Order 1 rule 17 CPR). 28.All said, ground three(3) of the appeal is also unsustainable. 29.In sum, his appeal is walking on merit and is hereby dismissed with costs to the respondent.Ordered accordingly. DATED & DELIVERED, THIS 14TH DAY OF JULY, 2026 HON. J.R. KARANJAH JUDGE