https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8258

Wairimu & 2 others v Wario (Civil Appeal E335 of 2024) [2026] KEHC 8258 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8258 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E335 of 2024 BW Murunga, J June 11, 2026 Between Stacy Wairimu 1st Appellant Express Concrete Works Limited 2nd Appellant Real Insurance Company Limited 3rd Appellant and Diba Hassan Wario Respondent (Being an appeal from the Judgment of the Chief Magistrate’s Court at Milimani, before Honourable Wendy Micheni (CM), delivered on the 29th February 2024 in CMCC No. E10141 of 202) Judgment 1.This appeal arises from the Judgment of the Chief Magistrate’s Court at Milimani by Hon. Wendy Micheni, Chief Magistrate (as she then was), delivered on the 29th February 2024 in CMCC No. E10141 of 2021. The suit before the trial court was instituted by Diba Hassan Wario (hereinafter “the Respondent”) as Plaintiff against Stacy Wairimu, Express Concrete Works Limited and Real Insurance Co. Ltd (hereinafter “the Appellants”) as Defendants, arising out of a road traffic accident that allegedly occurred on or about 2nd December 2020 along Magadi Road near the Catholic University. 2.The Respondent averred that he was lawfully and carefully riding motorcycle KMDY 964H along Magadi Road when the 1st Appellant, acting either for the 2nd or 3rd Appellant, so negligently drove, managed or controlled motor vehicle KBS 078V that it collided with the motorcycle, and that as a consequence the Respondent sustained serious bodily injuries. 3.The Respondent testified before the trial court and tendered documentary evidence including a Police Abstract and a medical report by Dr. Washington Wokabi. A Traffic Police Officer, Cpl. Dickens Kandele, testified as PW1 in support of the Respondent’s case and produced the Police Abstract. 4.The Appellants closed their case without calling any witness and without tendering any documentary evidence in rebuttal, though the medical report by Dr. Nathan Kamala was produced in evidence by consent. 5.The learned trial Magistrate, after evaluating the evidence, found the Appellants 100% liable for the accident and awarded the Respondent Kshs. 1,500,000/= as general damages. 6.Being aggrieved by the said Judgment, the Appellants filed the present appeal vide a Memorandum of Appeal dated 15th February 2024, raising ten (10) grounds of appeal principally challenging:i.That the learned Magistrate erred in law and fact in failing to consider and find that the Appellants had shown a prima facie case with a high probability of success;ii.That the learned Magistrate erred in law and fact in apportioning 100% liability against the Appellants;iii.That the learned Magistrate erred in law and fact in failing to consider and find that the Respondent was not a licensed rider at the time of the accident;iv.That the learned Magistrate erred in law and fact in failing to consider and find that the contents of a Police Abstract, as extracted from the records held by the police, are merely evidence that a report of an accident was made and not that an accident occurred;v.That the learned Magistrate erred in law and fact in failing to consider and find that a Police Abstract is not conclusive proof of liability;vi.That the learned Magistrate erred in law and fact in failing to consider and find that the police officer was not present at the scene of the accident and as such could not render any account of the events leading up to or surrounding the alleged accident, which offends the evidentiary rules on direct evidence and renders his testimony hearsay;vii.That the learned Magistrate erred in law and fact in failing to consider and find that there can be no liability without fault;viii.That the learned Magistrate erred in law and fact in failing to consider and find that, in assessing damages, the general approach should be that comparable injuries should so far as possible be compensated by comparable awards, while recalling that no two cases are exactly alike; andix.That the learned Magistrate erred in law and fact in failing to consider that, in assessing compensatory damages, the law seeks to indemnify the victim for the loss suffered and not to mulct the tortfeasor for the injury he has caused. 7.The Appellants’ submissions were dated 10th April 2025, while the Respondent’s submissions were dated 24th April 2025. Appellants’ Submissions 8.On the issue of liability, the Appellants submit that the trial court erred in holding them 100% liable. They contend that the circumstances of the accident, the evidence adduced and the probative value of that evidence did not warrant the said finding on liability. 9.The Appellants place considerable reliance on the proposition that a Police Abstract is not conclusive proof of liability, nor proof that an accident occurred, but is merely evidence that a report of an accident was made. 10.They further argue that there was no proof that investigations into the accident were ever conducted. 11.The Appellants further contend that the police officer who testified as PW1 was neither the investigating officer nor an eyewitness to the accident, and that his testimony therefore amounts to inadmissible hearsay with no probative value. They rely on the definition of direct evidence in Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR), as well as Section 63 of the Evidence Act. 12.The Appellants invoke the principle that, where no concrete evidence exists to determine who is to blame for an accident, liability ought to be apportioned equally at 50:50 as between the parties, citing the Court of Appeal decision in Eastern Produce (K) Ltd v Christopher Atiado Osiro [2006] eKLR. They further rely on the following proposition:The onus of proof lies upon him who alleges, and where negligence is alleged the position was well laid in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, where 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. 13.On quantum, the Appellants contend that the award of Kshs. 1,500,000/= in general damages is inordinately high given the nature of the injuries, and advance comparable awards in the region of Kshs. 350,000/= drawn from Adembesa & another v Gweno [2024] KEHC 5379 (KLR), Rege v LA [2022] KEHC 16634 (KLR), and Asad Motors Limited & 2 others v Yaa (Civil Appeal 92 of 2022) [2023] KEHC 24279 (KLR). 14.The Appellants pray that the appeal be allowed, that liability be apportioned at 50:50, and that the award of general damages be reduced to Kshs. 350,000/= less 50% on account of liability. 15.On costs, the Appellants submit that, under Section 27(1) of the Civil Procedure Act, costs follow the event, and that this Court should therefore award them the costs of the appeal. Respondent’s Submissions 16.The Respondent submits that he has proved his case on a balance of probabilities, and that the learned trial Magistrate correctly apportioned liability at the full 100% in his favour. 17.The Respondent highlights that the trial court found that the Appellants had not controverted his evidence, and that their blameworthiness flowed from their failure to adduce any rebuttal evidence. 18.He testified under oath, adopted his written statement, and produced documentary evidence including the Police Abstract, NTSA vehicle records, medical reports, hospital receipts and the P3 Form. He further called PW1, a Traffic Police Officer, who corroborated the occurrence of the accident and confirmed the involvement of the Appellants’ motor vehicle. 19.The Respondent underscores that the Appellants closed their case entirely without calling any witness or tendering any evidence, thereby leaving his testimony and supporting documents wholly uncontroverted. 20.On liability, the Respondent submits that the issue of his not holding a riding licence was never pleaded, and that in any event he told the court that he held one. 21.On damages, the Respondent argues that an appellate court will not disturb an award of general damages unless it is so inordinately high (or low) as to amount to an erroneous estimate of the damage. 22.The Respondent draws the Court’s attention to Order 42 Rule 4 of the Civil Procedure Rules, under which an appellant shall not, except with the leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. His contention is that the Appellants did not properly raise, in their grounds, the question of the award being excessive. 23.He prays that the appeal be dismissed with costs. Issues For Determination 24.From The Pleadings, The Record of Appeal, and the written submissions of the parties, this Court identifies the following two issues for determination:a.Whether the learned trial Magistrate erred in apportioning 100% liability against the Appellants; andb.Whether the award of general damages in the sum of Kshs. 1,500,000/= was inordinately high and warrants interference by this Court on appeal. Analysis And Determination 25.At the outset, it is useful to restate the well-established principles governing the jurisdiction of this Court on a first appeal from the subordinate court. This Court is empowered by Section 78 of the Civil Procedure Act (Cap. 21) and Order 42 Rule 25 of the Civil Procedure Rules, 2010. As the first appellate court, it has a duty to re-evaluate the entire evidence on record and to arrive at its own independent conclusions, while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. 26.The principle was settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal for East Africa held that a first appellate court should reconsider the evidence, evaluate it itself, and draw its own conclusions, while always bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. This Court will apply that standard in the analysis that follows. 27.The foundational principle of tort liability in Kenya was authoritatively stated by the Court of Appeal in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, where it was affirmed that there is no liability without fault, and that a plaintiff must prove some negligence against the defendant where the claim is founded on negligence. The evidential basis for such proof is governed by Sections 107, 108 and 109 of the Evidence Act (Cap. 80), which place the burden of proof on the party who asserts the existence of the facts upon which a right or liability depends. 28.In civil proceedings, the standard of proof is on a balance of probabilities, which requires the tribunal to be satisfied that the occurrence of the alleged event was more likely than not. As Lord Denning stated in Miller v Minister of Pensions [1947] 2 All ER 372, the evidence must carry a reasonable degree of probability; if the tribunal can say that it is more probable than not, the burden is discharged. Lord Denning expressed it thus:“That degree is well settled. 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, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 29.The first substantive challenge raised by the Appellants is that the evidence adduced by the Respondent was insufficient to sustain the apportionment of 100% liability. The Appellants attack, in particular, the reliance placed on the Police Abstract. 30.On the value of a Police Abstract, this Court is guided by a well-settled line of authority. It is accepted that the contents of a Police Abstract, as extracted from the records held by the police, are merely evidence that a report of an accident was made. The abstract is prima facie evidence of the occurrence of the accident and of the particulars of those involved, but it is rebuttable and is not conclusive proof of liability. In Kennedy Nyangoya v Bash Hauliers [2016] eKLR, the court held that even where a Police Abstract indicates that a party was to blame, the abstract is not conclusive proof of liability in the absence of further corroborating evidence. These propositions represent trite law and are not in dispute. 31.The critical question, however, is not whether the Police Abstract alone suffices to establish liability, but whether, when considered alongside the totality of the evidence adduced, the Respondent discharged his burden of proof on a balance of probabilities. This Court is of the view that the Appellants’ focus on the Police Abstract, while legally accurate in isolation, ignores the broader evidentiary matrix that was before the trial court. 32.It is a fundamental principle of evidence, well stated in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR, where Odunga J held that where a defendant fails to call any evidence in rebuttal, the evidence adduced by the plaintiff, if credible, stands uncontroverted, and the defendant’s pleaded defence remains a mere statement of facts unsubstantiated by proof. 33.This principle is reinforced by the doctrine of adverse inference. In Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR, Odunga J (as he then was) held that where a party who is in a position to controvert the plaintiff’s account of how an accident occurred elects not to testify, the court is entitled not only to treat the plaintiff’s evidence as uncontroverted, but also to draw the inference that the evidence which that party withheld would, had it been given, have been adverse to his case. In the present appeal, the 1st Appellant was the driver of the offending motor vehicle and was uniquely placed to give an account of the accident. Her silence, and that of the Appellants as a whole, invites precisely that inference. 34.That an appellate court should be slow to disturb a finding founded on uncontroverted evidence is underscored by the Court of Appeal in John Wainaina Kagwe v Hussein Dairy Limited [2013] eKLR, where the Court emphasised that uncontroverted evidence ought not to be lightly disregarded where the opposing party has adduced nothing to displace it. The same reasoning applies here: the Respondent’s sworn account stood unchallenged, and the trial Magistrate cannot be faulted for accepting it. 35.The Appellants place particular emphasis on the fact that the Police Abstract recorded the matter as pending investigation, and argue that no investigation was concluded so as to attribute blame to them. This Court takes note of the argument, but observes that the matter is being determined many years after the accident, and that the absence of a concluded police investigation does not, of itself, exonerate the Appellants. The civil court is required to arrive at its own independent finding on a balance of probabilities, distinct from any criminal or regulatory process. 36.Nor can it be the position that the failure of the police to charge a person with a traffic offence renders that person blameless in civil law. The standards of proof, and the purposes served by the two processes, are materially different. 37.The crux of this Court’s analysis on liability is the Appellants’ complete failure to adduce any evidence whatsoever in rebuttal. Whilst the Respondent gave testimony on oath and reiterated the version of how the accident occurred, which placed the blame on the Appellants, the Appellants offered nothing to contradict it. 38.The Appellants urge this Court to apply the principle in John Simon Ashers v Nelson Okello Onjao [2020] eKLR and to apportion liability equally at 50:50, on the basis that there is no concrete evidence to determine who is to blame. With respect, this Court finds that principle inapplicable on the facts of this case, because the Respondent actually testified. 39.The John Simon Ashers principle is appropriate only where both sides adduce evidence and neither can establish the other’s fault, so that it becomes impossible to prefer one account over the other. In the present case the Respondent testified on oath and called a supporting witness, while the Appellants offered nothing. To apply equal apportionment in these circumstances would be to penalise a plaintiff who has discharged his burden of proof, and to reward a defendant who elected to remain silent. 40.Taking the evidence in its totality, the Respondent’s sworn testimony, the corroborating evidence of PW1, the documentary record, the rebuttable but unrebutted Police Abstract, and the adverse inference arising from the Appellants’ silence, this Court is satisfied that the Respondent discharged his burden of proof on a balance of probabilities, and that the trial Magistrate’s apportionment of liability at 100% against the Appellants was neither a misdirection in law nor an erroneous appreciation of the facts. The first issue is accordingly answered in the negative. 41.The second issue concerns the award of Kshs. 1,500,000/= in general damages. The governing principles on appellate interference with awards of general damages are well settled. As stated in Ephantus Mwangi & Another v Duncan Mwangi Wambugu (Civil Appeal No. 74 of 1982) [1982-88] 1 KAR 278, an appellate court will not interfere with an award of general damages unless the trial court applied wrong principles of law, or misapprehended the facts, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate of the damage. 42.The same principle was restated in Peter Namu Njeru v Philemone Mwagoti (Civil Appeal 132 of 2012) [2016] eKLR, where the Court observed that the assessment of damages is a discretionary matter vested in the trial court, and that there must be a clear and demonstrable error before an appellate court will interfere. 43.On the correct approach to assessment, it is trite that comparable injuries should, so far as possible, be compensated by comparable awards, while bearing in mind that no two cases are exactly alike. The assessment must reflect the nature and gravity of the injuries actually sustained. The law, in assessing compensatory damages, seeks at most to indemnify the victim for the loss suffered, and not to penalise the tortfeasor. 44.According to the medical evidence on record, the Respondent sustained serious orthopaedic injuries, namely: a fracture of the right radius and ulna, which was fixed with K-wires; double fractures of the right femur, which were operated upon and fixed with a K-nail, leaving him able to bend the knee only up to about 90 degrees against a normal range of about 135 degrees; a dislocation of the midline pelvis; and blunt soft-tissue injuries to the head. 45.The medical report by Dr. Nathan Kamala, produced on behalf of the Appellants, also forms part of the record. 46.Weighing these injuries against the comparable awards relied upon by the Appellants, this Court is not persuaded that the figure of Kshs. 350,000/= proposed by the Appellants reflects injuries of the same character or gravity. The injuries sustained by the Respondent were multiple, involved fractures to more than one limb, required surgical intervention and internal fixation, and have left a measurable and permanent limitation in the movement of the knee. 47.Such injuries are materially more serious than those typically attracting awards in the lower range contended for by the Appellants. The Appellants have not demonstrated that the trial Magistrate applied any wrong principle, or that the award fell outside the range reasonably open to her on comparable injuries. 48.Accordingly, a sum of Kshs. 1,500,000/= would, in the opinion of this Court, adequately compensate the Respondent for the pain, suffering and loss of amenities occasioned by the injuries sustained, bearing in mind the principle of indemnity and the current levels of comparable awards. The award discloses no error warranting interference, and the second issue is also answered in the negative. Disposition 49.In conclusion, having re-evaluated the entirety of the evidence and considered the written submissions of the parties, this Court finds that the appeal lacks merit, and the following orders are made:a.The appeal against the apportionment of liability at 100% against the Appellants is dismissed.b.The award of general damages is upheld.c.The Respondent shall have judgment against the Appellants in the sum of Kshs. 1,500,000.00 together with interest thereon at court rates from the date of the judgment of the subordinate court until payment in full.d.The costs of this appeal are awarded to the Respondent. DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on a virtual platform in the presence of:Ms Mudeizi instructed by ROM Law for the AppellantsKaburu instructed by Nelson Kaburu for the RespondentKevin Babu - Court Assistant