(Appeal from the Judgment of Hon. J.N Mwaniki (CM) in the Chief Magistrate’s Court at Makueni, Civil Case No.30 of 2020, delivered on 17th November 2021)
1. The Respondent CAROLYNE ODOUAR MUKORE filed Chief Magistrate’s Court at Makueni, Civil Case No.30 of seeking general damages special damages, future medical expenses, costs of the suit and interest, for personal injuries sustained from a road accident on 27/11/2019 at Ocal filing station along the Wote-Machakos road. It was her case that she was lawfully cleaning the windscreen of another motor vehicle when the Appellant’s driver/servant/agent drove motor vehicle registration KBA 556G in a careless/negligent manner and caused it to knock her causing her injuries.
2. The Appellant ABDUL MAGETO filed a statement of defence denying all the allegations in the plaint and put the plaintiff to strict proof thereof. His position was that in the unlikely event that the injuries pleaded were suffered, it was not as a result of an accident caused by him.
3. The Respondent replied to the defence whereupon she joined issues with the defence and reiterated the contents of her plaint.
4. The matter proceeded to full trial and judgment was delivered in favor of the Respondent. The trial magistrate found the Appellant and his co-defendant 100% liable and awarded general damages of kshs 1,200,000/=, future medical expenses of 200,000/= and special damages of kshs 23,790/=.
The Appeal
5. The appellant was aggrieved by the decision, and filed this appeal on the following grounds;
a) THAT the learned magistrate erred in law and fact holding the Appellant 100% liable for the accident when there was no sufficient evidence in support of that finding.
b) THAT the learned magistrate erred in law and fact in failing to hold the Respondent wholly or substantially liable for the accident.
c) THAT the learned magistrate erred in dismissing the Appellant’s evidence despite the fact that he adduced a plausible and or credible defence.
d) THAT the learned magistrate erred in law and fact in finding that the Appellant had not proved negligence on the part of the Respondent despite the concrete and introverted evidence on record.
e) THAT the learned magistrate erred in law and fact by awarding the Respondent a sum of kshs 1,200,000 as general damages for pain and suffering and cost of amenities that was so excessive taking into account the damage suffered by the Respondent.
6. The parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.
Submissions by the Appellant
7. As to whether the learned magistrate erred by holding the Appellant 100% liable, it was submitted that during cross-examination of the police officer, it was confirmed that the Appellant was never charged before a traffic court and that the police abstract was silent on who was to blame for the accident. It was contended that the evidence of the police officer was not conclusive in that it could not tell the circumstances of the accident or who was to be blamed. Reliance was placed, inter alia, on Florence Mutheu Musembi & Geoffrey Mutunga Kimiti -vs- Francis Kadenge [2021] eKLR where the court stated;
“A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and the outcome, such evidence cannot without more be evidence of negligence. The police abstract report which was produced before the trial court did not contain any other information apart from the date of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the motor vehicle, the victim and the name of the investigating officer. There was no information regarding outcome of investigations which was said to be still pending. That document could not therefore be the basis of finding liability on the part of the respondents.”
8. As to whether the learned magistrate erred by finding that the Appellant had not proved negligence on the part of the part of the Respondent, it was submitted that during examination-in-chief of the Respondent, it was clear that she was cleaning the windscreen of motor vehicle probox while standing on the right side of the said vehicle when she was hit by the subject motor vehicle. That the inference to be drawn is that she saw the subject motor vehicle moving towards her direction but she opted not to run towards a different direction so as to avoid the accident.
9. As to whether the learned magistrate erred by awarding kshs 1,200,000/= as general damages, it was submitted that kshs 400,000/= was sufficient for the injuries sustained. Reliance was placed on Mbithi Muinde William -vs- Rose Mutheu Mulatia [2019] eKLR where the Respondent was awarded kshs 400,000/= for a swollen, tender wrist and left leg, fracture of the left 5th metacarpal bone and fracture of the right tibia.
10. In conclusion, this court was urged to subject the evidence to exhaustive scrutiny and allow the appeal.
Submissions by the Respondent
11. Relying on sections 107, 108 and 109 of the Evidence Act, the Respondent submitted that she had established the Appellant’s liability on a balance of probabilities. That her testimony was that she was cleaning the windscreen of a motor vehicle which runs on petrol when motor vehicle KBA 556G which runs on diesel moved to her side and hit her. That she did not expect the said motor vehicle to move to where she was because the diesel pumps were in a different place.
12. The Respondent submitted that her witness, Police Constable Elikana Angweny, confirmed the fact of the accident, the date of the accident and the cause of the accident. Reliance was placed, inter alia, on Kenya Bus Services Ltd -vs- Dina Kawira Humphrey CA 295/2000 where the Court of Appeal stated;
“Buses when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation. Well driven motor vehicles do not just get involved in accidents.”
13. On the quantum of damages, reliance was placed on Kemfro Africa Ltd t/a Meru Express Service, Gathogo Kanini -vs- A.M Lubia and Olive Lubia (1987) KLR,30 for the submission that the learned magistrate followed all the relevant factors including inflation. It was submitted that the Appellant cited authorities for 2018 and 2019 which did not take into consideration the inflationary tendencies, lapse of time and low value of the Kenyan currency.
14. Further reliance was placed on Savanna Saw Mills Ltd -vs- George Mwale Mudomo (2005) eKLR for the submission that comparable injuries should attract comparable awards. It was contended that the authorities cited by the Appellant show less serious injuries than in the instant case. It was submitted that the Respondent herein was awarded permanent incapacity and future medical expenses yet the authorities cited by the Appellant had no awards for incapacity and future medical expenses. Reliance was placed on Nzuki Isaac Muveke -vs- Francis Njogu Njehia (2021) eKLR where the court stated;
“Therefore, keeping in mind that what guides the courts is not just limited to past decisions and nature of injuries but the court also ought to have taken into consideration the residual effects which from Dr. Magare’s report indicated that the appellant was psychologically disturbed. It is also not clear whether the court took into account the 5% disability ratio assessed in favor of the appellant. I think in considering comparable awards, a court must also be alive to the trends and economic trends such as the dwindling value of the Kenyan shilling. I refer to what the Court of Appeal stated in Mbaka Nguru & Anor -vs- James George Rakwar (1998) eKLR that; “The ward must however reflect the trend of previous, recent and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
15. It was submitted that special damages of kshs 23,790/= were pleaded and strictly proved.
16. As for the future medical expenses, it was submitted that the same were pleaded and evidence was led through the medical report of Dr. Okere which indicates that kshs 200,000/= would be required to remove the metal plate. Consequently, it was submitted that they were regularly awarded. Reliance was placed on Tracom Limited & another -vs- Hasssan Mohamed Adan [2009] eKLR where the Court of Appeal (Tunoi, Waki & Onyango Otieno JJ.A) stated;
“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -
“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.”
We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.”
17. In conclusion, it was submitted that nothing in the trial court judgment is excessive hence the appeal should be dismissed with costs.
Duty of Court
18. As a first appellate court I am required to analyze and re-evaluate the evidence on record and to draw my own conclusions always bearing in mind that I did not have the benefit of seeing or hearing the witnesses. [Selle -vs-Associated Motor Boat Company (1969) E.A 123].
19. I have considered the evidence on record, the grounds of appeal, and the rival submissions and the issues for determination are:
a) Who was to blame for the accident and to what extent?
b) Whether the quantum of damages should be disturbed.
Who was to blame for the accident and to what extent?
Evidence on Liability
20. PW1 was Caroline Aduor Mukore, the Respondent. She adopted her statement dated 21/02/2020 as her evidence in chief in which she stated that on the material day, she was working at Ocal filling station located along Wote-Machakos road. She was cleaning the windscreen of a probox motor vehicle when motor vehicle KBA 556G hit her while on her rightful side and caused serious injuries. She produced the documents on her list as P. Ex 1-14.
21. On cross examination, she said that she was a pump attendant at Ocal petrol station and was attending to another motor vehicle when she was hit by this motor vehicle. That the driver used to drive at a high speed and carelessly.
22. In re-examination, she said that she was not expecting the lorry to knock her as she worked on another vehicle. That the vehicle she was attending is fueled on petrol and the lorry on diesel hence it should have been on a different place to fuel diesel.
23. PW3 was P.C Elikana Angweny based at Makueni Traffic Police. She produced the police abstract regarding an accident involving motor vehicle KBA 556G- a water tanker- on 27/11/2019 along Wote-Machakos road at Ocal petrol station and there was an OB report to that effect. That the driver Abdul Mageto got into the petrol station to fuel and knocked down a pump attendant who was attending to another motor vehicle.
24. On cross-examination, she conceded that she was not the investigating officer but said that visited the scene. That the plaintiff was knocked down by the rear of the motor vehicle on the left side. That the driver was at a moderate speed and on the wrong side. That the driver was not charged with a traffic offence.
25. DW1 was Mr. Abdul Mageto Morris. He testified that on 27/11/2019, he was driving along Machakos-Wote road and he drove into a petrol station which had 3 rows of pumps. That he saw a woman at a distance from the motor vehicle that appeared to cross towards the office. He was then told that he had knocked down the woman. The woman was knocked down by a metal bar used to sprinkle water. He was not charged with any traffic offence and did not have any intention of hurting the woman.
26. On cross examination, he said that he was driving at about 5km/hr. That he met the patient in a hospital bed and on a wheel chair. She was hit by the side of the vehicle.
Analysis and Determination
27. The fact that an accident occurred on the material day between motor vehicle KBA 556G (Lorry) and the Respondent is not in dispute. It is also not in dispute that the Respondent was working as a pump attendant at Ocal petrol station along the Wote-Machakos road when the accident occurred. The police abstract and evidence of PW1, PW3 and DW1 corroborate the fact of the accident, the parties involved and location where it occurred.
28. The Appellant submitted that the evidence of the police officer was not conclusive in that it could not tell the circumstances of the accident or who was to be blamed. He also submitted that the Respondent was at fault for not running to a different direction to avoid the accident. In my view, the circumstances of the accident are pretty clear from the evidence to wit that the Respondent was working at the petrol station when she was hit by the lorry. DW1 himself conceded that the Respondent was hit by the metal bar used to sprinkle water.
29. Did the facts that the appellant was not charged with a traffic offence absolve him from liability with respect to the civil claim? No. and this position is supported by other cases see for example Alubai -vs- County Government of Bungoma & 2 others (Civil Appeal E065 of 2021) [2023] KEHC 2089 (KLR) (21 March 2023) (Judgment) where the court stated;
“The mere fact that a driver involved in an accident is not charged does not of itself absolve a driver of tortious liability. Traffic and civil proceedings are separate. If the police, or the Office of Director of Public Prosecutions, decide not to prosecute does not bar the injured person from initiating civil proceedings to recover damages in tort, and it does not bar the Court either in determining the liability of the driver.”
30. The Respondent testified that the motor vehicle was running on diesel and was therefore supposed to be on the diesel pump but it hit her while on row lane for the petrol vehicles. PW3 also testified that the lorry was on the wrong side and the record shows that this evidence was not challenged. All what DW1 said was that he did not intend to hit the woman. On a balance of probability therefore, tit was established that DW1 was on the wrong side hence careless/negligent.
31. As for the Respondent, the fact that the lorry was on the wrong side of the pump should have caused her to be more alert and to look out for its movements. The evidence of PW2 and DW1 is that the Respondent was hit by a metal bar at the rear of the lorry and evidence of DW1 is that he did not know that he had hit the Respondent until he was told by other people. Considering that a petrol station is not a place where vehicles can speed, it appears that the Respondent was totally oblivious of her surroundings to the point of not seeing the approaching danger. In Isabella Wanjiru Karangu -vs- Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142, Potter, JA held that:
“There can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. There is no reason for a pedestrian’s complete failure to see a motorist and vice versa…. The doctrine of last opportunity is obsolete as no distinction can be drawn between negligence after seeing danger and negligence in not seeing it beforehand. The two causes of the accident cannot be severed and so the trial Judge was right to find both were at fault.”
32. The Respondent was not a pedestrian per se but the nature of her work caused her to be in constant interaction with vehicles and as such, some degree of alertness was expected from her. In my view therefore, the Respondent ought to have borne some degree of responsibility. On the other hand, DW1 was the one in possession of a lethal machine hence a higher standard of care was expected from him. In the circumstances, the award on liability will be 90% on the part of the appellant and 10% by the Respondent.
33. Consequently, I am of the view that the trial court erred for failing to assign any liability to the Respondent.
Quantum
34. The injuries sustained were pleaded as follows;
a) Deep cut on the right supra orbital region
b) Bruise on the right lumbar region
c) Multiple bruises on the left upper limb
d) Inter trochanteric fracture of the left femur
e) Fracture of the right lateral malleolus
f) Fracture of the right proximal tibia
g) Permanent incapacity of 30% on the right leg
h) Degree of permanent incapacity of the left leg 40%
35. The Respondent produced a medical report by Dr. Cyprianus Okoth Okore which particularized the injuries and degrees of incapacity as pleaded. The doctor classified the injuries as ‘grievous harm’.
36. In her evidence in court, the Respondent testified that she was admitted for about 51 days whereupon blood transfusion was done and implants put. That she lost consciousness and sustained serious injuries including fractures. On cross-examination, she said that she used a wheel chair for about 8 months and was walking with a limp. That the accident reduced her productivity as a pump attendant and she cannot stand for long.
37. PW2 was Dr. Cyprianus Okoth Okore, a medical officer in private practice. He reiterated the contents of the medical report and testified that the Respondent would need about kshs 200,000/= to remove some implants in situ. That the removal costs of the plate is average in private hospital but could be cheaper in Government hospitals which would entail a lot of waiting.
38. On cross-examination, he said that he had relied on the P3 and discharge summary to make his report and that the fractures in his report are also reflected in the P3 form. That he also examined the patient. He said that the patient would have incapacity in regard to walking and doing heavy manual work. That when one is in good health, a fracture takes a minimum of 6 weeks to heal.
39. In re-examination, he said that healing is different from incapacity.
40. The Appellant argued that the award of kshs 1,200,000/= as general damages was excessive. His proposal in the trial court was kshs 420,000/= and he relied on the following cases;
a) Jitan Nagra -vs- Abidnego Nyandusioigo [2018] eKLR where the Respondent was awarded kshs 450,000/= for; lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.
b) Mbithi Muinde William -vs- Rose Mutheu Mulatia [2019] eKLR where the Respondent was awarded kshs 400,000/= for; a swollen tender wrist and left leg, fracture of the 5th metacarpal bone and fracture of the right tibia.
41. On the other hand, the Respondent proposed an award of kshs 2,000,000/= and relied on the following cases;
a) Lucy Waruguru Gatundu -vs- Francis Kinyanjui Njuku [2017] eKLR where the plaintiff was awarded kshs 1,600,000/= for; right femur fracture (distal end), right tibia segmental fracture & right fibula segmental fracture.
b) Patrick Kinyanjui Njama -vs- Evans Juma Mukweyi [2017] eKLR where the Respondent was awarded 1,500,000/= for; segmental fracture of the right femur mid shaft, segmental fracture of the right tibia shaft (open), fracture of the right fibula & fracture of the left 3rd metatarsal bone and further surgery estimated at kshs 50,000/= to remove the metal plates and assessment of 30% disability.
c) Regina Mwikali Wilson -vs- Stephen M. Gichuhi & Anor [2015] eKLR where an award of kshs 2,500,000/= was awarded for several injuries including shortening of the leg.
42. Whereas the cases cited by the Appellant had almost similar injuries to those sustained by the Respondent herein, they lacked assessment of incapacity hence making them less comparable. In my view, Patrick Kinyanjui Njama (supra) cited by the Respondent is more comparable in terms of injuries and degree of incapacity.
43. Additionally, there is Simon Njoroge Ngotho -vs- Masari Distributors Limited [2021] eKLR where an award of kshs 1,000,000/= general damages was given to a plaintiff who suffered major injuries on both legs, was admitted for 6 months and permanent incapacity on both legs was assessed to be between 25 & 30%. There is also Kamau & another -vs- Omare (Civil Appeal E835 of 2021) [2024] KEHC 9243 (KLR) (Civ) (30 July 2024) (Judgment) where the court upheld an award of kshs 950,000/= for Comminuted fracture of the distal right tibia, fracture of the right fibula, recurrent pain on the right lower leg, walking with a limp and permanent incapacity of 30%.
44. The assessment of damages is an exercise of discretion, it is trite that the appellate Court will not disturb the trial Court’s award of damages unless the wrong principles were applied or irrelevant factors were considered or relevant factors were ignored or the award is so inordinately high or so inordinately low as to represent an entirely erroneous assessment.
45. Having assessed the authorities cited and the ward of damages I find that none of the exemptions set out herein above has been demonstrated by the appellant to invite my interference with the award of Kshs 1,200,000/= as it is within the acceptable range for similar injuries.
46. The award for future medical expenses was pleaded and Dr. Okere gave a figure of kshs 200,000/= for removal of the implants. The Appellant did not avail an alternative medical report to contradict that figure.
47. The special damages were also not contested and the record shows that they were pleaded and proved. Consequently, the final award works out as follows;
General Damages…………………………….Kshs 1,200,000
Future Medical Expenses……………………Kshs 200,000
Special Damages……………………………...Kshs 23,790
Total………………………………………..…..Kshs 1,423,790
Less 10%......................................................
Net Award………………………………………. Kshs 1,139,032
The respondent will have costs and interest here and below. The costs of the appellant will have 10% of the costs
Dated this 4th July 2025
Ms Kyalo for the appellant
Appellants’ Advocates
Kithuka & Nafula Advocates
kandnadvocates@gmail.com
Respondent’s Advocates
Njuguna Kirera & Co. Advocates
njugunakirera@gmail.com
1. The Respondent CAROLYNE ODOUAR MUKORE filed Chief Magistrate’s Court at Makueni, Civil Case No.30 of seeking general damages special damages, future medical expenses, costs of the suit and interest, for personal injuries sustained from a road accident on 27/11/2019 at Ocal filing station along the Wote-Machakos road. It was her case that she was lawfully cleaning the windscreen of another motor vehicle when the Appellant’s driver/servant/agent drove motor vehicle registration KBA 556G in a careless/negligent manner and caused it to knock her causing her injuries.
2. The Appellant ABDUL MAGETO filed a statement of defence denying all the allegations in the plaint and put the plaintiff to strict proof thereof. His position was that in the unlikely event that the injuries pleaded were suffered, it was not as a result of an accident caused by him.
3. The Respondent replied to the defence whereupon she joined issues with the defence and reiterated the contents of her plaint.
4. The matter proceeded to full trial and judgment was delivered in favor of the Respondent. The trial magistrate found the Appellant and his co-defendant 100% liable and awarded general damages of kshs 1,200,000/=, future medical expenses of 200,000/= and special damages of kshs 23,790/=.
The Appeal
5. The appellant was aggrieved by the decision, and filed this appeal on the following grounds;
a) THAT the learned magistrate erred in law and fact holding the Appellant 100% liable for the accident when there was no sufficient evidence in support of that finding.
b) THAT the learned magistrate erred in law and fact in failing to hold the Respondent wholly or substantially liable for the accident.
c) THAT the learned magistrate erred in dismissing the Appellant’s evidence despite the fact that he adduced a plausible and or credible defence.
d) THAT the learned magistrate erred in law and fact in finding that the Appellant had not proved negligence on the part of the Respondent despite the concrete and introverted evidence on record.
e) THAT the learned magistrate erred in law and fact by awarding the Respondent a sum of kshs 1,200,000 as general damages for pain and suffering and cost of amenities that was so excessive taking into account the damage suffered by the Respondent.
6. The parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.
Submissions by the Appellant
7. As to whether the learned magistrate erred by holding the Appellant 100% liable, it was submitted that during cross-examination of the police officer, it was confirmed that the Appellant was never charged before a traffic court and that the police abstract was silent on who was to blame for the accident. It was contended that the evidence of the police officer was not conclusive in that it could not tell the circumstances of the accident or who was to be blamed. Reliance was placed, inter alia, on Florence Mutheu Musembi & Geoffrey Mutunga Kimiti -vs- Francis Kadenge [2021] eKLR where the court stated;
“A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and the outcome, such evidence cannot without more be evidence of negligence. The police abstract report which was produced before the trial court did not contain any other information apart from the date of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the motor vehicle, the victim and the name of the investigating officer. There was no information regarding outcome of investigations which was said to be still pending. That document could not therefore be the basis of finding liability on the part of the respondents.”
8. As to whether the learned magistrate erred by finding that the Appellant had not proved negligence on the part of the part of the Respondent, it was submitted that during examination-in-chief of the Respondent, it was clear that she was cleaning the windscreen of motor vehicle probox while standing on the right side of the said vehicle when she was hit by the subject motor vehicle. That the inference to be drawn is that she saw the subject motor vehicle moving towards her direction but she opted not to run towards a different direction so as to avoid the accident.
9. As to whether the learned magistrate erred by awarding kshs 1,200,000/= as general damages, it was submitted that kshs 400,000/= was sufficient for the injuries sustained. Reliance was placed on Mbithi Muinde William -vs- Rose Mutheu Mulatia [2019] eKLR where the Respondent was awarded kshs 400,000/= for a swollen, tender wrist and left leg, fracture of the left 5th metacarpal bone and fracture of the right tibia.
10. In conclusion, this court was urged to subject the evidence to exhaustive scrutiny and allow the appeal.
Submissions by the Respondent
11. Relying on sections 107, 108 and 109 of the Evidence Act, the Respondent submitted that she had established the Appellant’s liability on a balance of probabilities. That her testimony was that she was cleaning the windscreen of a motor vehicle which runs on petrol when motor vehicle KBA 556G which runs on diesel moved to her side and hit her. That she did not expect the said motor vehicle to move to where she was because the diesel pumps were in a different place.
12. The Respondent submitted that her witness, Police Constable Elikana Angweny, confirmed the fact of the accident, the date of the accident and the cause of the accident. Reliance was placed, inter alia, on Kenya Bus Services Ltd -vs- Dina Kawira Humphrey CA 295/2000 where the Court of Appeal stated;
“Buses when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation. Well driven motor vehicles do not just get involved in accidents.”
13. On the quantum of damages, reliance was placed on Kemfro Africa Ltd t/a Meru Express Service, Gathogo Kanini -vs- A.M Lubia and Olive Lubia (1987) KLR,30 for the submission that the learned magistrate followed all the relevant factors including inflation. It was submitted that the Appellant cited authorities for 2018 and 2019 which did not take into consideration the inflationary tendencies, lapse of time and low value of the Kenyan currency.
14. Further reliance was placed on Savanna Saw Mills Ltd -vs- George Mwale Mudomo (2005) eKLR for the submission that comparable injuries should attract comparable awards. It was contended that the authorities cited by the Appellant show less serious injuries than in the instant case. It was submitted that the Respondent herein was awarded permanent incapacity and future medical expenses yet the authorities cited by the Appellant had no awards for incapacity and future medical expenses. Reliance was placed on Nzuki Isaac Muveke -vs- Francis Njogu Njehia (2021) eKLR where the court stated;
“Therefore, keeping in mind that what guides the courts is not just limited to past decisions and nature of injuries but the court also ought to have taken into consideration the residual effects which from Dr. Magare’s report indicated that the appellant was psychologically disturbed. It is also not clear whether the court took into account the 5% disability ratio assessed in favor of the appellant. I think in considering comparable awards, a court must also be alive to the trends and economic trends such as the dwindling value of the Kenyan shilling. I refer to what the Court of Appeal stated in Mbaka Nguru & Anor -vs- James George Rakwar (1998) eKLR that; “The ward must however reflect the trend of previous, recent and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
15. It was submitted that special damages of kshs 23,790/= were pleaded and strictly proved.
16. As for the future medical expenses, it was submitted that the same were pleaded and evidence was led through the medical report of Dr. Okere which indicates that kshs 200,000/= would be required to remove the metal plate. Consequently, it was submitted that they were regularly awarded. Reliance was placed on Tracom Limited & another -vs- Hasssan Mohamed Adan [2009] eKLR where the Court of Appeal (Tunoi, Waki & Onyango Otieno JJ.A) stated;
“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -
“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.”
We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.”
17. In conclusion, it was submitted that nothing in the trial court judgment is excessive hence the appeal should be dismissed with costs.
Duty of Court
18. As a first appellate court I am required to analyze and re-evaluate the evidence on record and to draw my own conclusions always bearing in mind that I did not have the benefit of seeing or hearing the witnesses. [Selle -vs-Associated Motor Boat Company (1969) E.A 123].
19. I have considered the evidence on record, the grounds of appeal, and the rival submissions and the issues for determination are:
a) Who was to blame for the accident and to what extent?
b) Whether the quantum of damages should be disturbed.
Who was to blame for the accident and to what extent?
Evidence on Liability
20. PW1 was Caroline Aduor Mukore, the Respondent. She adopted her statement dated 21/02/2020 as her evidence in chief in which she stated that on the material day, she was working at Ocal filling station located along Wote-Machakos road. She was cleaning the windscreen of a probox motor vehicle when motor vehicle KBA 556G hit her while on her rightful side and caused serious injuries. She produced the documents on her list as P. Ex 1-14.
21. On cross examination, she said that she was a pump attendant at Ocal petrol station and was attending to another motor vehicle when she was hit by this motor vehicle. That the driver used to drive at a high speed and carelessly.
22. In re-examination, she said that she was not expecting the lorry to knock her as she worked on another vehicle. That the vehicle she was attending is fueled on petrol and the lorry on diesel hence it should have been on a different place to fuel diesel.
23. PW3 was P.C Elikana Angweny based at Makueni Traffic Police. She produced the police abstract regarding an accident involving motor vehicle KBA 556G- a water tanker- on 27/11/2019 along Wote-Machakos road at Ocal petrol station and there was an OB report to that effect. That the driver Abdul Mageto got into the petrol station to fuel and knocked down a pump attendant who was attending to another motor vehicle.
24. On cross-examination, she conceded that she was not the investigating officer but said that visited the scene. That the plaintiff was knocked down by the rear of the motor vehicle on the left side. That the driver was at a moderate speed and on the wrong side. That the driver was not charged with a traffic offence.
25. DW1 was Mr. Abdul Mageto Morris. He testified that on 27/11/2019, he was driving along Machakos-Wote road and he drove into a petrol station which had 3 rows of pumps. That he saw a woman at a distance from the motor vehicle that appeared to cross towards the office. He was then told that he had knocked down the woman. The woman was knocked down by a metal bar used to sprinkle water. He was not charged with any traffic offence and did not have any intention of hurting the woman.
26. On cross examination, he said that he was driving at about 5km/hr. That he met the patient in a hospital bed and on a wheel chair. She was hit by the side of the vehicle.
Analysis and Determination
27. The fact that an accident occurred on the material day between motor vehicle KBA 556G (Lorry) and the Respondent is not in dispute. It is also not in dispute that the Respondent was working as a pump attendant at Ocal petrol station along the Wote-Machakos road when the accident occurred. The police abstract and evidence of PW1, PW3 and DW1 corroborate the fact of the accident, the parties involved and location where it occurred.
28. The Appellant submitted that the evidence of the police officer was not conclusive in that it could not tell the circumstances of the accident or who was to be blamed. He also submitted that the Respondent was at fault for not running to a different direction to avoid the accident. In my view, the circumstances of the accident are pretty clear from the evidence to wit that the Respondent was working at the petrol station when she was hit by the lorry. DW1 himself conceded that the Respondent was hit by the metal bar used to sprinkle water.
29. Did the facts that the appellant was not charged with a traffic offence absolve him from liability with respect to the civil claim? No. and this position is supported by other cases see for example Alubai -vs- County Government of Bungoma & 2 others (Civil Appeal E065 of 2021) [2023] KEHC 2089 (KLR) (21 March 2023) (Judgment) where the court stated;
“The mere fact that a driver involved in an accident is not charged does not of itself absolve a driver of tortious liability. Traffic and civil proceedings are separate. If the police, or the Office of Director of Public Prosecutions, decide not to prosecute does not bar the injured person from initiating civil proceedings to recover damages in tort, and it does not bar the Court either in determining the liability of the driver.”
30. The Respondent testified that the motor vehicle was running on diesel and was therefore supposed to be on the diesel pump but it hit her while on row lane for the petrol vehicles. PW3 also testified that the lorry was on the wrong side and the record shows that this evidence was not challenged. All what DW1 said was that he did not intend to hit the woman. On a balance of probability therefore, tit was established that DW1 was on the wrong side hence careless/negligent.
31. As for the Respondent, the fact that the lorry was on the wrong side of the pump should have caused her to be more alert and to look out for its movements. The evidence of PW2 and DW1 is that the Respondent was hit by a metal bar at the rear of the lorry and evidence of DW1 is that he did not know that he had hit the Respondent until he was told by other people. Considering that a petrol station is not a place where vehicles can speed, it appears that the Respondent was totally oblivious of her surroundings to the point of not seeing the approaching danger. In Isabella Wanjiru Karangu -vs- Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142, Potter, JA held that:
“There can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. There is no reason for a pedestrian’s complete failure to see a motorist and vice versa…. The doctrine of last opportunity is obsolete as no distinction can be drawn between negligence after seeing danger and negligence in not seeing it beforehand. The two causes of the accident cannot be severed and so the trial Judge was right to find both were at fault.”
32. The Respondent was not a pedestrian per se but the nature of her work caused her to be in constant interaction with vehicles and as such, some degree of alertness was expected from her. In my view therefore, the Respondent ought to have borne some degree of responsibility. On the other hand, DW1 was the one in possession of a lethal machine hence a higher standard of care was expected from him. In the circumstances, the award on liability will be 90% on the part of the appellant and 10% by the Respondent.
33. Consequently, I am of the view that the trial court erred for failing to assign any liability to the Respondent.
Quantum
34. The injuries sustained were pleaded as follows;
a) Deep cut on the right supra orbital region
b) Bruise on the right lumbar region
c) Multiple bruises on the left upper limb
d) Inter trochanteric fracture of the left femur
e) Fracture of the right lateral malleolus
f) Fracture of the right proximal tibia
g) Permanent incapacity of 30% on the right leg
h) Degree of permanent incapacity of the left leg 40%
35. The Respondent produced a medical report by Dr. Cyprianus Okoth Okore which particularized the injuries and degrees of incapacity as pleaded. The doctor classified the injuries as ‘grievous harm’.
36. In her evidence in court, the Respondent testified that she was admitted for about 51 days whereupon blood transfusion was done and implants put. That she lost consciousness and sustained serious injuries including fractures. On cross-examination, she said that she used a wheel chair for about 8 months and was walking with a limp. That the accident reduced her productivity as a pump attendant and she cannot stand for long.
37. PW2 was Dr. Cyprianus Okoth Okore, a medical officer in private practice. He reiterated the contents of the medical report and testified that the Respondent would need about kshs 200,000/= to remove some implants in situ. That the removal costs of the plate is average in private hospital but could be cheaper in Government hospitals which would entail a lot of waiting.
38. On cross-examination, he said that he had relied on the P3 and discharge summary to make his report and that the fractures in his report are also reflected in the P3 form. That he also examined the patient. He said that the patient would have incapacity in regard to walking and doing heavy manual work. That when one is in good health, a fracture takes a minimum of 6 weeks to heal.
39. In re-examination, he said that healing is different from incapacity.
40. The Appellant argued that the award of kshs 1,200,000/= as general damages was excessive. His proposal in the trial court was kshs 420,000/= and he relied on the following cases;
a) Jitan Nagra -vs- Abidnego Nyandusioigo [2018] eKLR where the Respondent was awarded kshs 450,000/= for; lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.
b) Mbithi Muinde William -vs- Rose Mutheu Mulatia [2019] eKLR where the Respondent was awarded kshs 400,000/= for; a swollen tender wrist and left leg, fracture of the 5th metacarpal bone and fracture of the right tibia.
41. On the other hand, the Respondent proposed an award of kshs 2,000,000/= and relied on the following cases;
a) Lucy Waruguru Gatundu -vs- Francis Kinyanjui Njuku [2017] eKLR where the plaintiff was awarded kshs 1,600,000/= for; right femur fracture (distal end), right tibia segmental fracture & right fibula segmental fracture.
b) Patrick Kinyanjui Njama -vs- Evans Juma Mukweyi [2017] eKLR where the Respondent was awarded 1,500,000/= for; segmental fracture of the right femur mid shaft, segmental fracture of the right tibia shaft (open), fracture of the right fibula & fracture of the left 3rd metatarsal bone and further surgery estimated at kshs 50,000/= to remove the metal plates and assessment of 30% disability.
c) Regina Mwikali Wilson -vs- Stephen M. Gichuhi & Anor [2015] eKLR where an award of kshs 2,500,000/= was awarded for several injuries including shortening of the leg.
42. Whereas the cases cited by the Appellant had almost similar injuries to those sustained by the Respondent herein, they lacked assessment of incapacity hence making them less comparable. In my view, Patrick Kinyanjui Njama (supra) cited by the Respondent is more comparable in terms of injuries and degree of incapacity.
43. Additionally, there is Simon Njoroge Ngotho -vs- Masari Distributors Limited [2021] eKLR where an award of kshs 1,000,000/= general damages was given to a plaintiff who suffered major injuries on both legs, was admitted for 6 months and permanent incapacity on both legs was assessed to be between 25 & 30%. There is also Kamau & another -vs- Omare (Civil Appeal E835 of 2021) [2024] KEHC 9243 (KLR) (Civ) (30 July 2024) (Judgment) where the court upheld an award of kshs 950,000/= for Comminuted fracture of the distal right tibia, fracture of the right fibula, recurrent pain on the right lower leg, walking with a limp and permanent incapacity of 30%.
44. The assessment of damages is an exercise of discretion, it is trite that the appellate Court will not disturb the trial Court’s award of damages unless the wrong principles were applied or irrelevant factors were considered or relevant factors were ignored or the award is so inordinately high or so inordinately low as to represent an entirely erroneous assessment.
45. Having assessed the authorities cited and the ward of damages I find that none of the exemptions set out herein above has been demonstrated by the appellant to invite my interference with the award of Kshs 1,200,000/= as it is within the acceptable range for similar injuries.
46. The award for future medical expenses was pleaded and Dr. Okere gave a figure of kshs 200,000/= for removal of the implants. The Appellant did not avail an alternative medical report to contradict that figure.
47. The special damages were also not contested and the record shows that they were pleaded and proved. Consequently, the final award works out as follows;
General Damages…………………………….Kshs 1,200,000
Future Medical Expenses……………………Kshs 200,000
Special Damages……………………………...Kshs 23,790
Total………………………………………..…..Kshs 1,423,790
Less 10%......................................................
Net Award………………………………………. Kshs 1,139,032
The respondent will have costs and interest here and below. The costs of the appellant will have 10% of the costs
Dated this 4th July 2025
Ms Kyalo for the appellant
Appellants’ Advocates
Kithuka & Nafula Advocates
kandnadvocates@gmail.com
Respondent’s Advocates
Njuguna Kirera & Co. Advocates
njugunakirera@gmail.com