https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8830

Mwanzui v Dilex Holding Company Ltd (Civil Appeal E042 of 2023) [2026] KEHC 8830 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8830 (KLR) Republic of Kenya In the High Court at Kitui Civil Appeal E042 of 2023 LW Gitari, J June 18, 2026 Between Willy Mwanzui Appellant and Dilex Holding Company Limited Respondent Judgment 1.This appeal arises from the Judgment in Mutomo Chief Magistrate’s Court Civil Case No. E005 of 2023 where the appellant had sued the respondent vide a plaint dated 8th September,2020 claiming general Damages as well as special damages and costs of the suit and interests. The claim was founded on negligence arising from a road traffic accident. 2.The appellant was aggrieved by judgement on liability and quantum preferred this appeal. Background Information 3.The appellant had sued the respondent claiming that on or about 3rd July 2019, the Plaintiff was lawfully riding a bicycle along the Kitui–Mutomo Road when Motorcycle registration number KMES 836X was so recklessly and carelessly ridden that the same allowed to knock down the appellant occasioning him severe bodily injuries and has since suffered loss and damage. As a result of the accident, the Plaintiff suffered severe bodily injuries, loss, and damage. 4.The appellant set out the particulars of negligence under paragraph four of the plaint. 5.The respondents filed a response to the plaint through statement of defence dated 13.4.2022 denying causing the said accident. The respondent blamed the appellant for causing the accident. The respondent also stated that there was an agreement at home setting the matter in accordance with Kamba Customary rights in presence of local chief. Evidence 6.This matter was heard before the trial court by way of Viva Voce evidence. 7.PW1 Willy Mwanzui adopted his statement and Documents filed in court as evidence in chief. 8.During cross examination he informed court that he does not know whether he signed an agreement. He confirmed that they did not reach an agreement. The Plaintiff closed his case. 9.DW1, Boniface Kilonzo Mutua, testified on oath in Kamba language. He stated that he works for the Defendant company and adopted his witness statement and documents as his evidence. He testified that following the accident, an agreement was reached between the parties after he visited the Plaintiff’s family and offered three goats, one of which was slaughtered during the settlement discussions. He stated that a written agreement was prepared in the presence of the area sub-chief, Jacob, and later taken to the police station, after which the motorcycle was released. According to DW1, the agreement settled all issues arising from the accident. He further testified that the OCS guided the parties during the process and that he personally took the Plaintiff to hospital and paid the medical expenses. He admitted that the accident occurred but maintained that the dispute had been amicably settled and urged the Court to dismiss the suit. 10.During cross examination DW1 confirmed that it is a cleansing practice in Kamba Customary Law. Judgement 11.Upon hearing the matter, the trial magistrate delivered a Judgment dated dated 22nd May 2023 in which the trial magistrate made a finding that the Plaintiff has not established liability against the defendant and proceed to dismiss the Plaintiff case. The Appeal 12.The appellant was aggrieved by the Judgment delivered on 22nd May 2023 and he appealed against liability and quantum . The appeal was based on the following grounds pleaded on the memorandum of appeal dated 16th June 2023;i.That the learned trial magistrate erred in law and fact in dismissing the Appellant’s case despite there being abundant evidence on record, thereby occasioning a miscarriage of justice.ii.That the learned trial magistrate erred in law and fact by failing to fully consider and appreciate the facts presented before the court by the Appellant and consequently assessed quantum inordinately low.iii.That the learned trial magistrate erred in law and fact by failing to fully consider and appreciate the evidence and submissions tendered by the parties and thereby ignored relevant guiding factors necessary for a fair determination on liability and quantum.iv.That the learned trial magistrate erred in law and fact by relying on matters not comparable to the facts of the instant case and consequently finding that the Appellant had failed to prove his case on a balance of probabilities.v.That the learned trial magistrate erred in law in dismissing the Appellant’s suit in its entirety contrary to the weight of the evidence adduced before the trial court.vi.That the learned trial magistrate erred in law and fact by failing to find the Respondent liable owing to misdirection and wrongful exercise of discretion on the evidence placed before the court.vii.That the learned trial magistrate erred in law and fact by considering irrelevant matters not properly before the court. 13.The Appellant prays that this Honourable Court be pleased to grant the following orders: -a.That the Appeal be allowed with costs.b.That the Judgment of the learned trial Magistrate on both liability and quantum be set aside, varied and/or substituted.c.That the Appellant’s suit in Mutomo CMCC No. 005 of 2020 be allowed and judgment be entered against the Respondent on liability.d.That this Honourable Court do award the Appellant general damages and special damages commensurate to the injuries suffered.e.That the costs of the Appeal and of the proceedings in the subordinate court be awarded to the Appellant together with interest from the date of filing the suit in the lower court. Submissions 14.By consent of parties, the appeal proceeded by way of written submission. The appellant filed written submissions dated 30th May 2024. The respondents filed written submissions dated 1st March,2026. 15.The Appellant submits that the Respondent’s rider was wholly to blame for the accident as he failed to exercise due care, maintain proper control of the motorcycle, and take reasonable measures to avoid the collision. It was submitted that the evidence on record demonstrated negligence on the part of the rider and that the trial magistrate erred in dismissing the suit. The Appellant therefore urged the appellate court to set aside the finding on liability and hold the Respondent 100% liable for the accident and the injuries sustained by the Appellant. 16.On quantum, the Appellant submitted that he suffered a fracture of the mandibular bone with displacement of the lower jaw fragment, loosening of teeth, and bruises on the forehead. He proposed an award of Kshs. 1,200,000 in general damages and relied on Alphonse Mivatuma Mwagamchi v Joseph Mwanzia Mwanzu & Another, Civil Suit No. 300 of 2001, where the claimant sustained a fractured mandible with loss of seven teeth and was awarded Kshs. 1,200,000, and Ahmed Mzee Famau t/a Najaa Coach Ltd & Another v Veronica Muiya Ngui Muiya [2017] eKLR, where the claimant suffered a fracture of the lower jaw and other soft tissue injuries and was awarded Kshs. 500,000. The Appellant submits that these authorities justified the proposed award, taking into account the passage of time and inflationary trends. 17.The respondent submitted that the Court lacks jurisdiction to entertain the appeal on account of the Appellant’s non-compliance with Order 42 Rule 13 and Order 42 Rule 4(e) of the Civil Procedure Rules, 2010, for failure to include mandatory documents in the Record of Appeal, namely the Respondent’s bundle of documents and submissions filed before the trial court. Reliance was placed on Climax Coaches Limited & another v Ogolla (Civil Appeal E328 of 2023) [2026] KEHC 2759 (KLR), where the Court held that omission of crucial trial court documents renders the Record of Appeal incompetent and may warrant striking out of the appeal. 18.On the issue of Alternative Justice System, the Respondent submitted that the dispute was properly resolved through Kamba customary dispute resolution mechanisms recognized under Article 159(2)(c) of the Constitution and Section 3(2) of the Judicature Act. It was argued that both parties participated in and accepted the customary settlement evidenced by an agreement dated 4th August 2019, including cleansing rituals, and therefore the courts should uphold such resolution in line with Sakayo Mwimbi v Kithome Katumi [2019] eKLR, Morris Odawa v Samuel Ochieng Auma [2019] eKLR, Edwin Otieno Obanjo v Martin Ondera Okumu Civil Appeal No. 2009 of 1996 [1996] eKLR, and the persuasive authority of Sigcau and Another v Minister of Cooperative Governance and Traditional Affairs and Others (CCT167/17) [2018] ZACC 28 which emphasizes development and recognition of customary law within constitutional values. Issue for determination 19.This Court has carefully re-evaluated and re-analyzed the entire evidence on record, as is required of a first appellate court, while bearing in mind that it did not have the advantage of seeing the witnesses testify. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence. In the case of Mbogo and Another v Shah [1968] EA 93 the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 20.The issues arising for determination are:a.Whether the Court has jurisdiction to determine the appeal in light of the Appellant's failure to comply with the requirements of Order 42 of the Civil Procedure Rules, 2010.b.Whether the learned trial magistrate erred in finding his that the Appellant failed to prove liability and whether the alleged agreement between the parties affected liability.c.Whether this court should interfere with the general damages awarded by lower court in the circumstances. Analysis and Determination Whether the Court has jurisdiction to determine the appeal in light of the Appellant's failure to comply with the requirements of Order 42 of the Civil Procedure Rules, 2010. 21.The Respondent contends that the appeal is incompetent and that this Court lacks jurisdiction to determine it because the Appellant failed to comply with the mandatory requirements of Order 42 of the Civil Procedure Rules, 2010 regarding the contents of the record of appeal. 22.It is submitted that the Appellant deliberately omitted crucial documents that formed part of the proceedings before the trial court, namely the Respondent’s bundle of documents attached to the Respondent’s List of Documents dated 13th April 2022 and filed on 26th April 2022. The Respondent further states that the Appellant failed to include the Respondent’s written submissions dated 14th March 2023 and filed on 16th March 2023 before the subordinate court. According to the Respondent, these omissions render the record of appeal incomplete and defective, thereby depriving the Court of jurisdiction to entertain the appeal. 23.The Respondent submits that this Court lacks jurisdiction to entertain the appeal because the Appellant failed to include in the record of appeal the Respondent's bundle of documents and written submissions filed before the trial court. The Court has considered this objection. 24.Order 42 of the Civil Procedure Rules sets out the documents that should form part of the record of appeal to enable the appellate court to effectively determine the issues raised. The purpose of the rule is to ensure that the Court has before it a complete record of the proceedings. However, the omission of some documents from the record does not automatically deprive the Court of jurisdiction to hear the appeal. Jurisdiction is conferred by the Constitution and statute and is not dependent on the completeness of the record of appeal. 25.The Court notes that the documents alleged to have been omitted are the Respondent's bundle of documents and written submissions. While such documents may be relevant to the determination of the appeal, their omission constitutes a procedural defect capable of being remedied through the filing of a supplementary record of appeal or by calling for the lower court file. The omission does not render the appeal a nullity nor does it oust the Court's appellate jurisdiction. 26.Further, written submissions are not evidence and their omission, without more, cannot invalidate an appeal. What is material is whether the Court has before it sufficient material to fairly determine the issues raised. In the circumstances of this case, no prejudice has been demonstrated that cannot be cured by appropriate directions of the Court. 27.Accordingly, I find that the omission of the Respondent's bundle of documents and submissions from the record of appeal does not deprive this Court of jurisdiction to determine the appeal. The objection is therefore without merit and is rejected. Whether the learned trial magistrate erred in his finding that the Appellant failed to prove liability on part of the respondent and whether the alleged agreement between the parties affected liability 28.It is not disputed that an accident occurred on 3rd July 2019 along Mutomo Road at Muumbani involving the Appellant, a pedal cyclist, and the Respondent’s motor cycle KMES 836X ridden by DW1. 29.The Appellant testified that the motor cycle was being ridden at excessive speed, lost control, and veered into his lane where he was lawfully cycling on the extreme left side of the road. The Respondent denied negligence and alleged that the Appellant encroached into his lane, causing a head-on collision. 30.The trial court found that neither version was corroborated by independent evidence such as a sketch map, investigating officer testimony, or eyewitness account, and that liability could not be safely attributed to either party. 31.The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 32.The burden of proof is on whoever asserts. This is set out succinctly in sections 107-109 of the Evidence Act as follows;“ 107.107.(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. 108.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. 109.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.” 33.In re H C minors {1996} AC 563 at 586 – Lord Nicholls explained what comprises a balance of probability as follows;“The balance of probability standard means that a Court is satised an event occurred, if the Court considers, that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities, the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegations, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probability. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation ……….” 34.In the present case,having re-evaluated the evidence on record and the judgment of the trial court, this Court is not persuaded that the learned trial magistrate erred in finding that the Appellant had failed to prove liability on a balance of probabilities. The Appellant bore the legal burden of proving the particulars of negligence attributed to the Respondent. Beyond his own testimony, no independent evidence was tendered to demonstrate how the accident occurred or to establish that the Respondent was to blame for the collision. Equally, the Respondent's version remained unsupported by independent evidence. 35.In the circumstances, the trial court was faced with two conflicting accounts of the accident, neither of which was corroborated by objective evidence such as a police sketch map, an investigating officer's testimony, photographs of the scene, or independent eyewitness accounts. The learned magistrate cannot therefore be faulted for concluding that liability could not safely be apportioned to either party. This Court finds that the Appellant failed to discharge the burden of proof placed upon him. 36.Further, this Court agrees with the trial court's finding that the agreement relied upon by the Appellant did not amount to an admission of liability by the Respondent. A plain reading of the agreement shows that its purpose was to facilitate the release of the motorcycle from police custody and promote reconciliation between the parties through traditional processes. The agreement expressly contemplated the continuation of other proceedings and did not contain any express or implied acknowledgment of negligence or legal responsibility for the accident. 37.Consequently, this Court finds that the learned trial magistrate properly evaluated the evidence, correctly applied the law relating to the burden and standard of proof, and arrived at a conclusion that was supported by the evidence on record. No basis has been laid for this Court to interfere with those findings. Whether this Court Should Interfere with the General Damages Awarded by the Trial Court. 38.The appellant has appealed against the quantum of damages awarded by the lower court. The appellant stated that the learned trial magistrate erred in law and fact by failing to fully consider and appreciate the facts presented before the court by the Appellant and consequently assessed quantum inordinately low. 39.I have perused the judgement on quantum delivered by trial court and I note that learned magistrate stated as follows;“General damages.Plaintiff in his submissions is asking for ksh. 1,200,000/= while defendant is proposing ksh 220.000/=. The p-3 form and the medical report by DR. DENNIS NYARIKI shows plaintiff suffered fracture mandibular bone with displacement of the lower jaw fragment, teeth loosening and bruises on the forehead. The injuries healed with no major complications and the degree of injury was classified as grievous harm.I have taken note of the authorities by plaintiff namely Alphonse Matsuma Miangamci Vs Jeph Mwanzia Mwanzu & Anor (2015] Eklr where the claimant suffered fracture of mandible with the loss of 7 teeth, contusion of the chest. severe back injury with spinal code involvement and he was awarded ksh 1.200,000/- on 15/12/05. There is also: Anne Nyachomba Gitau & Anor Vs Paul Muigai Murigi [20191 Ekir where the claimant was awarded ksh 600,000/- for extreme and severe craniofacial injuries. fracture of the jaw and fracture of the facial bones. Now, considering injuries suffered. passage of time and the purchasing power of Kenya shilling. I would have awarded a sum of ksh. 800.000/= as general damages. I have taken note of what plaintiff has undergone. It is unfortunate and painful and there is no need to add him more miseries.” 40.Having set out the trial court findings. The principles upon which an appellate court may interfere with an award of damages are now well settled. An award of general damages is a matter of judicial discretion, and an appellate court will not ordinarily interfere merely because it would have awarded a different figure. Interference is only warranted where it is shown that the trial court acted on wrong principles of law, took into account irrelevant factors, failed to consider relevant factors, or where the award is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. 41.In the case ofKemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, the Court of Appeal held that an appellate court can only interfere with an award of damages if it is satisfied that the trial court proceeded on wrong principles or that the award was manifestly excessive or manifestly inadequate. 42.Having reviewed the judgment of the trial court, the medical evidence on record, and the authorities cited by the parties, I am not persuaded that there exists any basis upon which this Court should interfere with the assessment of damages made by the learned trial magistrate. The trial court properly considered the nature and extent of the injuries sustained by the Appellant, namely a fracture of the mandibular bone with displacement of the lower jaw fragment, loosening of teeth, and bruises to the forehead, which injuries were classified as grievous harm. 43.The learned magistrate also considered comparable authorities cited by the parties and expressly considered the passage of time and the prevailing economic conditions before arriving at the figure he considered appropriate. There is nothing on record to suggest that the trial court considered irrelevant considerations, failed to consider relevant factors, or applied the wrong principles in assessing damages. 44.Indeed, the trial magistrate observed that, had liability been established, he would have awarded the Appellant Kshs. 800,000/= as general damages. 45.Having compared that figure with awards made by courts in cases involving comparable injuries, I find that the proposed award was within the acceptable range and represented a fair and reasonable estimate of the damages that would have been payable. It cannot therefore be said that the award was either manifestly excessive or manifestly inadequate. 46.Guided by the principles set out in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982-88] 1 KAR 727 and bearing in mind that assessment of damages is a matter of judicial discretion, I find no error in principle on the part of the learned trial magistrate. 47.Consequently, even if this Court were minded to consider the issue of quantum, it would have no basis for disturbing the trial court's assessment. Accordingly, this ground of appeal fails. The trial court's assessment of general damages is upheld. 48.Accordingly, this appeal lacks merit and is hereby dismissed in entirety. 49.Costs for the respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026.……………………LUCY GITARIJUDGE