https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12906

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **HCCA NO. E089 OF 2024** **WIJ HOLDINGS LIMITED--------------------------------1ST APPELLANT** **DAVID NDIBUI WAITHAKA----------------------------2ND APPELLANT** **VERSUS** **NATHAN MURIIRA KSRUNYA---------------------------RESPONDENT** **JUDGMENT** **Background** 1. The respondent vide a plaint dated 3/12/2021 sought general and special damages against the appellants. It was alleged that he was involved in a road traffic accident on the 14/3/2018 at Camflames Hotel, when the appellants’ motor vehicle KAZ 619G was carelessly driven thus knocking him down as a result of which he sustained bodily injuries. He set out the particulars of negligence and his injuries in his plaint. 2. After trial in which the appellants did not call any evidence, on 27/10/2023, the trial court entered judgment for the plaintiff against them as follows; 1. Liability at 100% against the defendants 2. Pain and suffering….ksh. 750,000/=. 3. Special damages……..Ksh. 6,750/= 4. Total……………….…..Ksh. 756,750/= 5. Costs of the suit 6. Interest at court rates 3. Aggrieved by the said judgment appellants filed the memorandum of appeal dated 27/2/2024, which listed 17 grounds which are rather repetitive. 4. In a nutshell, the appellants sought to persuade this court that the trial magistrate erred in law and in fact in finding that the appellants were 100% liable for causing the accident and that the award a sum of Kshs. 750,000/= as general damages for pain and suffering was inordinately high. 5. The appeal was canvassed through written submissions, which I will not rehash. I will refer to them where necessary. **Issues for determination** 1. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions. 2. In this respect in **Selle and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123** it was stated as follows:- ***“….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”*** 1. Likewise in **Gitobu Imyanyara & 2 Others -vs- Attorney General [2016] eKLR**, the Court of Appeal stated thus; - ***“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 1. The issues that fall for determination are as follows; 2. **Who was to blame for the accident?** 3. **Whether the trial court’s award on quantum is excessive or inordinately high?** 4. It is not in dispute that an accident occurred on the 14/03/2018, involving the appellants’ motor vehicle KAZ 619G and the respondent. 5. PW1 was the respondent. He testified that he was a pedestrian when the appellants’ motor vehicle knocked him down. He blamed the driver of the motor vehicle for the accident. He alleged that the lorry’s driver lost control and hit him. 6. PW2, Francis Mbaabu, testified as an eye witness and confirmed that he saw the appellants’ motor vehicle being carelessly driven and knocking down the respondent. 7. The occurrence of the accident was confirmed by the evidence of Robert Tomno (PW3) who produced the corresponding police abstract that showed that bodily injuries were occasioned on the respondent. He conceded that he was not the investigating officer. 8. The appellants did not adduce any evidence to rebut the respondent’s evidence. 9. The parties correctly referred to the provisions of section 107 of the Evidence Act on the burden of proof, which states as follows; **“(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.”** 1. The Court of Appeal in **John Wainaina Kagwe v Hussein Dairy Limited [2013] KECA 488 (KLR)** held that a defendant who closes its case without calling any witness is taken not to have controverted the plaintiff’s evidence and the averments in their defense are taken as mere denials. The court held as follows; **“*As already stated, the respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify, meaning, that the allegations in its defense with regard to the blameworthiness of the accident on the appellant either wholly or substantially remained just that, mere allegations. The respondent thus never tendered any evidence to prop up its defense. Whatever the respondent gathered in cross-examination of the appellant and his witnesses could not be said to have built up its defense. As it were therefore, the respondent's defense was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defense that tendered to exonerate it fully from culpability. It was thus substantially to blame for the accident.”*** 1. From the foregoing, and in the absence of any evidence by the appellant, this court is unable to depart from the trial court’s holding on liability. I uphold the same. 2. The trial court heard the testimony of PW4, Dr. Kimathi Kioga, who produced the respondent’s medical report dated 21/10/2021. 3. In his testimony, PW4 stated that the respondent sustained the following injuries; * Lower back pain. * Pelvic Fracture. * Friction wound of left iliac crest. 1. The doctor was of the view that the injuries sustained caused a 10% degree of disability. 2. This court is invited to determine whether the Kshs. 750,000/= awarded by the trial court as general damages for pain and suffering was excessive. 3. The Court of Appeal in **Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)** set out the conditions for an appellate court to disturb an award of damages awarded by the trial court. It held as follows; **“*The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”*** 1. From the foregoing, and having perused the submissions filed by both parties, this court associates itself with the respondent’s cited case of **Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] KEHC 9029 (KLR),** where the High Court set aside the trial court’s award of 1,700,000/= as general damages where the victim had sustained a pelvic fracture among other soft tissue injuries. 2. Further in the case of **Budul Investment Company Limited & another v Odhiambo (Civil Appeal 70 of 2023) [2024] KEHC 5765 (KLR) (13 May 2024) (Judgment),** the High Court upheld the trial court’s award of Kshs. 750,000/= being general damages for pain and suffering. The victim therein had sustained a pelvic fracture and other soft tissue injuries. 3. Having considered the evidence and submissions by the parties, I find no good ground to depart from trial court’s finding on quantum. The award was within the range awarded in similar cases. I uphold the award. 4. Special damages awarded by the trial court were not disputed. I uphold the same. 5. Consequently, this court finds no merit in the instant appeal and the same is dismissed with costs to the respondent. 6. It is so ordered. **Dated, signed and delivered at Meru this 5th day of August, 2026.** **H. M. NYAGA** **JUDGE**