REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E 040 OF 2021
ANWARALI & BROTHERS LIMITED ....................................................APPELLANT
VERSUS
1. JOSEPH MUTURA KAMAU
2. MOMBASA COASTLINE .......................................................... RESPONDENTS
(Being an Appeal from the Judgment of Hon. B. Bartoo (SRM) in Machakos CMCC. No. 303 of 2019 delivered on 11/3/2021)
JUDGEMENT
1. By a plaint dated 27th September 2006, the 1st Respondent (Plaintiff then) sued the Appellant (2nd Defendant then) and the 2nd Respondent (1st Defendant then) claiming damages for personal injuries he sustained following a road traffic accident involving the Appellant’s motor vehicle registration number KAE 154H-ZB 7035 Nissan Lorry Trailer (hereinafter referred to as “the Lorry”) and the 2nd Respondent’s motor vehicle registration number KAR 740S Nissan Bus (hereinafter referred to as “the Bus”) while he was travelling as a fare paying passenger in the 2nd Respondent’s Bus.
2. The 1st Respondent is said to have sustained the following injuries as a result of the road traffic accident herein;
i) Fracture of Tibia and humerus leading to right below knee amputation and skin grafting
ii) Fracture of proximal right femur
iii) Dislocation of the right hip
iv) Fracture of left Tibia
v) Fracture of the right humerus
vi) Soft tissue injuries
3. The 1st Respondent’s severe injuries led to two operations, the first one was at Voi District Hospital where the following was done.
i) Right below knee amputation.
ii) Skin grafting.
iii) Right Femur intramedullary rod.
iv) POP for the left humerus.
v) POP for the left tibia and,
4. The Second operation was at P.C.E.A Kikuyu Hospital where the following was done:-
i) Right Below knee amputation revision.
ii) Right K-Nail advancement.
iii) Right Hip fusion and application of 1½ hip spica cast.
5. The 1st Respondent is still on physiotherapy and will require application of the right below knee prosthesis.
6. That by virtue of the above injuries, the 1st Respondent will require provision for;
a. Cost of right Below Knee Prosthesis-Kshs.500,000/-
b. Regular physiotherapy@Kshs.300/-per visit.
c. Cost of a nurse care @ Kshs.10,000/=per month.
7. At the time of the accident, the 1st Respondent was aged 35 years, a married man with two (2) minor children. He was involved in a lucrative business of buying fruits from Kongowea Market Mombasa and taking them for sale in Kisii, a business where he used to earn an average of Kshs.30,000/-per month. As a result of this accident, the 1st Respondent has lost that opportunity to earn a living and his family as well as himself has suffered loss and damage.
8. The 1st Respondent claimed for the following damages:
i) Loss of income at the rate of Kshs.30,000/- for the rest of his life.
ii) Loss of future opportunities.
ii) Pain, suffering and social stigma for being one legged.
9. The 1st Respondent averred that the accident was caused by the negligence of the drivers of the two vehicles while in the course of their employment and the Appellant and the 2nd Respondents are vicariously liable.
10. The 1st Respondent prayed for:
a) General damages
b) Loss of income at Kshs.30,000/= per month
c) Special damages at Kshs.229,205/=
d) Costs of the suit and interest.
11. The 2nd Respondent being the 1st Defendant filed a Statement of Defence dated 19th October 2006 generally denying the claim as against it and blaming the driver of motor vehicle registration number KAE 154H-ZB 7035 for negligence owned by the Appellant (1st Defendant).
12. The Appellant being the 2nd Defendant also filed a Statement of Defence dated 9th October 2006 generally denying the claim as against it and blaming the driver of the 2nd Respondent (1st Defendant) for negligence.
13. The matter proceeded for hearing with the 1st Respondent testifying as the sole witness for his case. He adopted his witness statement dated 20/01/2020 as his testimony in chief and produced as exhibits the documents listed on his list of documents dated 20/07/2020.
14. Both the Appellant and the 2nd Respondent’s cases were closed without calling evidence.
15. The trial court considered the pleadings and the evidence presented by the 1st Respondent and found that the 1st Respondent had established that both the Appellant and the 2nd Respondent’s drivers were negligent in their actions resulting into the subject accident and proceeded to hold both jointly and severally 100% liable for the occurrence of the accident.
16. On quantum, the trial court awarded damages as follows:
a) General damages Kshs.3,800,000/=
b) Loss of earnings Kshs. 700,000/=
c) Cost of future medical expenses NIL
d) Special damages Kshs. 229,205/=
e) Costs of the suit, interest at court rates from the date of judgement till payment is made in full.
17. Being dissatisfied by the said judgment, the Appellant filed the appeal herein challenging both liability and quantum of the trial court.
Analysis and determination
18. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.
19. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -
A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
20. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion
21. I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; I will proceed to consider whether the trial court’s findings on liability and quantum should be disturbed on this appeal.
Liability
22. The Appellant contends that its motor vehicle is blameless. A scrutiny of the 1st Respondent's testimony as the Plaintiff reveals that the Appellant's motor vehicle KAE 154H/ ZB 7035 was at a standstill as it was parked at the edge of the road. The 1st Respondent’s oral testimony confirms the 2nd Respondent's vehicle KAR 740S aboard which the 1st Respondent was a passenger, made a futile attempt to overtake a trailer ahead of them when they met an oncoming vehicle on the opposite lane and in an attempt to get back to his own lane, the driver of KAR 740S carelessly swerved left but misjudged his manoeuvre and rammed into the rear of the Appellant's parked trailer on the edge of the road. Thus, the blame rests squarely on the driver motor vehicle KAR 740S for failing to pay attention to the Appellant's parked vehicle and thereby causing the accident.
23. The Appellant submitted that it was the duty of the 2nd Respondent's driver to drive cautiously with due regard to other road users. The evidence is clear that even the 1st Respondent as the passenger saw the cause of the accident and this was very crucial for the success of his case. There is simply nothing to prove the necessary causation and the link between the Appellant's alleged negligence and the injury to the 1st Respondent. The evidence against the Appellant is insufficient to hold both the Appellant and 2nd Respondent jointly liable. The fact that the Appellant did not have a witness in the trial in no way lessens the burden on the 1st Respondent to prove his case. Reliance was placed on the case of Kenya Power and Lighting Company Limited vs Nathan Karanja Gachoka & Another (2016) eKLR where the court stated that:
"I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not. "
24. The Appellant invited the court to find that no sufficient evidence on liability was availed to either partly or wholly blame the Appellant’s driver for causing the accident in light of the foregoing.
25. On the other hand, the 1st Respondent’s counsel submitted that on 29/10/2020, the 1st Respondent testified as PWI and gave a clear and detailed account as to how the accident occurred by adopting his statement dated 20/07/2020. The 1st Respondent’s testimony was that on 17/05/2005 he was travelling as a fare paying passenger aboard motor vehicle Registration No. KAR 740S Bus from Kisii to Mombasa at about 4.00 am and upon reaching Manyatta area near Maungu, the driver of the said motor vehicle hit a trailer registration No. KAE 154H-ZB 703S while attempting to overtake a 3rd party motor vehicle whose registration number is unknown and a trailer also on motion heading towards Mombasa general direction when a pick-up from the opposite direction emerged and flashed lights at the driver of motor vehicle registration No. KAR 740S (Bus). In an attempt to avoid a head-on collision with the oncoming pick-up, the driver of KAR 740S then swerved back onto his lane and rammed into the rear of motor vehicle registration No. KAE 154H-ZB 703S which although not in motion was parked with part of its body partly on the left lane as one faces Mombasa general direction, thus not completely off the road.
26. That on cross examination by Counsel for the Appellant, the 1st Respondent was clear and categorical that he clearly witnessed the accident as he was awake when the accident occurred and was seated near/next to the driver on the left side of the driver and therefore had clear and an obstructed view of the road.
27. The 1st Respondent also confirmed that the driver of Bus was over speeding while overtaking the unknown trailer in front of it and had unsuccessfully overtaken the same and that the unknown motor vehicle was not involved in the accident. Further, due to the high speed that the driver of the Bus was driving at while overtaking, he was unable to slow down, stop, swerve or in any way effectively manage the motor vehicle on time to avoid ramming into the rear of motor No. KAE 154H - ZB 7035.
28. The 1st Respondent was also clear and categorical that he blamed the drivers of both motor vehicles for the accident. He blamed the driver of the Bus for overtaking when it was unsafe to do so, driving at an excessive speed in the circumstances, failing to stop, swerve, slow down, in order to avoid ramming onto the rear of the Trailer and the driver failing to exercise due care and attention. He then blamed the driver of motor vehicle registration Trailer for failing to make or place warning signs and hazards on the road and failing to park the Trailer completely off the tarmac road despite there being enough room/space for him to do so. His testimony was that the said trailer was carelessly and negligently parked. He therefore attributed negligence to both drivers and owners of the motor vehicles.
29. Having considered the proceedings, the evidence on record and the submissions of parties on liability in this appeal, I gather that it is not disputed that the trailer had stopped and parked beside that road when the bus in which the 1st Respondent was travelling in rammed into it from the rear. The 1st Respondent testified that he clearly witnessed the accident happen as he was seated near the driver on the left side. The 1st Respondent therefore blamed the driver of the motor vehicle No. KAR 740S (Bus) for overtaking when it was unsafe to do so, driving at an excessive speed in the circumstances, failing to stop, swerve, slow down, in order to avoid ramming onto the rear of motor vehicle registration No. KAE 154H - ZB 7035(Trailer) and the driver failing to exercise due care and attention. He then blamed the driver of motor vehicle registration No. KAE 154H - ZB 7035 for failing to make or place warning signs and hazards on the road and failing to park the motor vehicle registration No. KAE 154H-ZB 7035 completely off the tarmac road despite there being enough room/space for him to do so.
30. There is no dispute too that the 2nd Respondent’s driver drove and/or controlled the Bus in such a manner that it rammed into the rear of the Appellant’s vehicle. I think, that in itself is sufficient evidence to determine liability. The accident is not disputed by the Parties as per the testimony of the 1st Respondent.
31. It is well established in law that any driver of motor vehicle should ensure that the distance between his/her motor vehicle and any other ahead of him should be such that, it would enable him/her to control/manage the vehicle in a manner that would prevent a collision from occurring.
32. It is the Appellant’s duty to convince court that his driver was not negligent and thus liability was wrongly entered as against him. Unfortunately, there was no evidence adduced to support this proposition. I have observed that no evidence was placed before court by the Appellant on where exactly the trailer was parked at the time of the accident; whether completely off the road or partly on the road. There was no evidence also adduced to show that the Appellant’s driver had placed warning signs and hazards on the road to warn other motorists and road users of the presence of the stopped trailer.
33. In the case of Khambi & Another vs Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
34. I find that the 2nd Respondent’s driver / servant/ agent and or employee failed in keeping a safe distance between his motor vehicle and the Appellant’s vehicle and also drove and controlled the Bus recklessly such that he was unable to avoid the collision and that the Appellant’s driver failed to prove that he placed warning signs and hazards on the road and failing to park the motor vehicle registration No. KAE 154H-ZB 7035 completely off the tarmac road.
35. Accordingly, I am of the opinion that the 2nd Respondent is 80% liable and the Appellant 20% liable for the accident.
Quantum
36. Regarding quantum, the Court of Appeal stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”.
35. In Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30, it was held that:
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either 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 damages.”
36. See also Butt v Khan (1981) KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001; (2004) eKLR.”
37. In the latter case, the Court of Appeal asserted the discretionary nature of general damages awards and observed that:
“An appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance”.
38. There is no dispute that the 1st Respondent sustained severe injuries as a result of the accident. The Medical Report by Dr. Kimuyu Judith dated 24/4/2011, Medical Report by Dr. Maina Ruga (for the 2nd Respondent) dated 15/1/2007, Report by Dr. Yusuf Kodwalla dated 24/9/2008. The 1st Respondent’s injuries were life threatening and left him maimed following the accident leaving him to deal with the social stigma of being a one-legged man. The injuries caused the 1st Respondent to be admitted in various hospitals for over 7 months.
39. In the most recent report by Dr. Wokabi for the Appellant dated 19/9/2019, Dr. Wokabi confirmed the multiple injuries and noted that they were multiple and major. Dr. Wokabi also noted that the 1st Respondent was disabled as a result of the accident and assessed the degree of permanent disability at 80%.
40. Doctor Kimuyu for the 1st Respondent during her examination in 2011 had assessed the permanent disability at 100%, Dr. Maina Ruga for the 1st Defendant assessed the same at 70% in 2007 while Dr. Kodwalla in 2008 assessed the same at 80%.
41. It is therefore clear that the 1st Respondent is permanently incapacitated following the accident.
42. The trial magistrate awarded Kshs.3,800,000/= in General damages, Kshs.700,000/= in loss of earnings, Nil award in costs of future medical expenses and Ksh.229,205/= in special damages plus costs of the suit and interest at court rates from the date of judgement of the trial court until full payment
43. In my considered view, this award cannot be said to be excessive or erroneous and I find no reason to disturb the same.
44. Accordingly, the appeal succeeds partially on the issue of liability where the trial court’s judgement on liability is set aside and substituted with apportionment of liability at 20% against the Appellant and 80% against the 2nd Respondent.
45. The final orders are as follows:
a) Liability -20% against Appellant; 80% against 2nd Respondent
b) General damages Kshs.3,800,000/=
c) Loss of earnings Kshs.700,000/=
d) costs of future medical expenses -NIL
e) Special damages Kshs.229,205/=
f) costs of the suit and interest at court rates from the date of judgement of the trial court until full payment
g) The Appellant shall have half costs of the appeal.
h) A thirty (30) days stay of execution is granted
46. It is so ordered. File closed
JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH JULY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2025
In the presence of :
………................................. for Appellant
……….............................. for Respondent
................ Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E 040 OF 2021
ANWARALI & BROTHERS LIMITED ....................................................APPELLANT
VERSUS
1. JOSEPH MUTURA KAMAU
2. MOMBASA COASTLINE .......................................................... RESPONDENTS
(Being an Appeal from the Judgment of Hon. B. Bartoo (SRM) in Machakos CMCC. No. 303 of 2019 delivered on 11/3/2021)
JUDGEMENT
1. By a plaint dated 27th September 2006, the 1st Respondent (Plaintiff then) sued the Appellant (2nd Defendant then) and the 2nd Respondent (1st Defendant then) claiming damages for personal injuries he sustained following a road traffic accident involving the Appellant’s motor vehicle registration number KAE 154H-ZB 7035 Nissan Lorry Trailer (hereinafter referred to as “the Lorry”) and the 2nd Respondent’s motor vehicle registration number KAR 740S Nissan Bus (hereinafter referred to as “the Bus”) while he was travelling as a fare paying passenger in the 2nd Respondent’s Bus.
2. The 1st Respondent is said to have sustained the following injuries as a result of the road traffic accident herein;
i) Fracture of Tibia and humerus leading to right below knee amputation and skin grafting
ii) Fracture of proximal right femur
iii) Dislocation of the right hip
iv) Fracture of left Tibia
v) Fracture of the right humerus
vi) Soft tissue injuries
3. The 1st Respondent’s severe injuries led to two operations, the first one was at Voi District Hospital where the following was done.
i) Right below knee amputation.
ii) Skin grafting.
iii) Right Femur intramedullary rod.
iv) POP for the left humerus.
v) POP for the left tibia and,
4. The Second operation was at P.C.E.A Kikuyu Hospital where the following was done:-
i) Right Below knee amputation revision.
ii) Right K-Nail advancement.
iii) Right Hip fusion and application of 1½ hip spica cast.
5. The 1st Respondent is still on physiotherapy and will require application of the right below knee prosthesis.
6. That by virtue of the above injuries, the 1st Respondent will require provision for;
a. Cost of right Below Knee Prosthesis-Kshs.500,000/-
b. Regular physiotherapy@Kshs.300/-per visit.
c. Cost of a nurse care @ Kshs.10,000/=per month.
7. At the time of the accident, the 1st Respondent was aged 35 years, a married man with two (2) minor children. He was involved in a lucrative business of buying fruits from Kongowea Market Mombasa and taking them for sale in Kisii, a business where he used to earn an average of Kshs.30,000/-per month. As a result of this accident, the 1st Respondent has lost that opportunity to earn a living and his family as well as himself has suffered loss and damage.
8. The 1st Respondent claimed for the following damages:
i) Loss of income at the rate of Kshs.30,000/- for the rest of his life.
ii) Loss of future opportunities.
ii) Pain, suffering and social stigma for being one legged.
9. The 1st Respondent averred that the accident was caused by the negligence of the drivers of the two vehicles while in the course of their employment and the Appellant and the 2nd Respondents are vicariously liable.
10. The 1st Respondent prayed for:
a) General damages
b) Loss of income at Kshs.30,000/= per month
c) Special damages at Kshs.229,205/=
d) Costs of the suit and interest.
11. The 2nd Respondent being the 1st Defendant filed a Statement of Defence dated 19th October 2006 generally denying the claim as against it and blaming the driver of motor vehicle registration number KAE 154H-ZB 7035 for negligence owned by the Appellant (1st Defendant).
12. The Appellant being the 2nd Defendant also filed a Statement of Defence dated 9th October 2006 generally denying the claim as against it and blaming the driver of the 2nd Respondent (1st Defendant) for negligence.
13. The matter proceeded for hearing with the 1st Respondent testifying as the sole witness for his case. He adopted his witness statement dated 20/01/2020 as his testimony in chief and produced as exhibits the documents listed on his list of documents dated 20/07/2020.
14. Both the Appellant and the 2nd Respondent’s cases were closed without calling evidence.
15. The trial court considered the pleadings and the evidence presented by the 1st Respondent and found that the 1st Respondent had established that both the Appellant and the 2nd Respondent’s drivers were negligent in their actions resulting into the subject accident and proceeded to hold both jointly and severally 100% liable for the occurrence of the accident.
16. On quantum, the trial court awarded damages as follows:
a) General damages Kshs.3,800,000/=
b) Loss of earnings Kshs. 700,000/=
c) Cost of future medical expenses NIL
d) Special damages Kshs. 229,205/=
e) Costs of the suit, interest at court rates from the date of judgement till payment is made in full.
17. Being dissatisfied by the said judgment, the Appellant filed the appeal herein challenging both liability and quantum of the trial court.
Analysis and determination
18. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.
19. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -
A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
20. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion
21. I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; I will proceed to consider whether the trial court’s findings on liability and quantum should be disturbed on this appeal.
Liability
22. The Appellant contends that its motor vehicle is blameless. A scrutiny of the 1st Respondent's testimony as the Plaintiff reveals that the Appellant's motor vehicle KAE 154H/ ZB 7035 was at a standstill as it was parked at the edge of the road. The 1st Respondent’s oral testimony confirms the 2nd Respondent's vehicle KAR 740S aboard which the 1st Respondent was a passenger, made a futile attempt to overtake a trailer ahead of them when they met an oncoming vehicle on the opposite lane and in an attempt to get back to his own lane, the driver of KAR 740S carelessly swerved left but misjudged his manoeuvre and rammed into the rear of the Appellant's parked trailer on the edge of the road. Thus, the blame rests squarely on the driver motor vehicle KAR 740S for failing to pay attention to the Appellant's parked vehicle and thereby causing the accident.
23. The Appellant submitted that it was the duty of the 2nd Respondent's driver to drive cautiously with due regard to other road users. The evidence is clear that even the 1st Respondent as the passenger saw the cause of the accident and this was very crucial for the success of his case. There is simply nothing to prove the necessary causation and the link between the Appellant's alleged negligence and the injury to the 1st Respondent. The evidence against the Appellant is insufficient to hold both the Appellant and 2nd Respondent jointly liable. The fact that the Appellant did not have a witness in the trial in no way lessens the burden on the 1st Respondent to prove his case. Reliance was placed on the case of Kenya Power and Lighting Company Limited vs Nathan Karanja Gachoka & Another (2016) eKLR where the court stated that:
"I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not. "
24. The Appellant invited the court to find that no sufficient evidence on liability was availed to either partly or wholly blame the Appellant’s driver for causing the accident in light of the foregoing.
25. On the other hand, the 1st Respondent’s counsel submitted that on 29/10/2020, the 1st Respondent testified as PWI and gave a clear and detailed account as to how the accident occurred by adopting his statement dated 20/07/2020. The 1st Respondent’s testimony was that on 17/05/2005 he was travelling as a fare paying passenger aboard motor vehicle Registration No. KAR 740S Bus from Kisii to Mombasa at about 4.00 am and upon reaching Manyatta area near Maungu, the driver of the said motor vehicle hit a trailer registration No. KAE 154H-ZB 703S while attempting to overtake a 3rd party motor vehicle whose registration number is unknown and a trailer also on motion heading towards Mombasa general direction when a pick-up from the opposite direction emerged and flashed lights at the driver of motor vehicle registration No. KAR 740S (Bus). In an attempt to avoid a head-on collision with the oncoming pick-up, the driver of KAR 740S then swerved back onto his lane and rammed into the rear of motor vehicle registration No. KAE 154H-ZB 703S which although not in motion was parked with part of its body partly on the left lane as one faces Mombasa general direction, thus not completely off the road.
26. That on cross examination by Counsel for the Appellant, the 1st Respondent was clear and categorical that he clearly witnessed the accident as he was awake when the accident occurred and was seated near/next to the driver on the left side of the driver and therefore had clear and an obstructed view of the road.
27. The 1st Respondent also confirmed that the driver of Bus was over speeding while overtaking the unknown trailer in front of it and had unsuccessfully overtaken the same and that the unknown motor vehicle was not involved in the accident. Further, due to the high speed that the driver of the Bus was driving at while overtaking, he was unable to slow down, stop, swerve or in any way effectively manage the motor vehicle on time to avoid ramming into the rear of motor No. KAE 154H - ZB 7035.
28. The 1st Respondent was also clear and categorical that he blamed the drivers of both motor vehicles for the accident. He blamed the driver of the Bus for overtaking when it was unsafe to do so, driving at an excessive speed in the circumstances, failing to stop, swerve, slow down, in order to avoid ramming onto the rear of the Trailer and the driver failing to exercise due care and attention. He then blamed the driver of motor vehicle registration Trailer for failing to make or place warning signs and hazards on the road and failing to park the Trailer completely off the tarmac road despite there being enough room/space for him to do so. His testimony was that the said trailer was carelessly and negligently parked. He therefore attributed negligence to both drivers and owners of the motor vehicles.
29. Having considered the proceedings, the evidence on record and the submissions of parties on liability in this appeal, I gather that it is not disputed that the trailer had stopped and parked beside that road when the bus in which the 1st Respondent was travelling in rammed into it from the rear. The 1st Respondent testified that he clearly witnessed the accident happen as he was seated near the driver on the left side. The 1st Respondent therefore blamed the driver of the motor vehicle No. KAR 740S (Bus) for overtaking when it was unsafe to do so, driving at an excessive speed in the circumstances, failing to stop, swerve, slow down, in order to avoid ramming onto the rear of motor vehicle registration No. KAE 154H - ZB 7035(Trailer) and the driver failing to exercise due care and attention. He then blamed the driver of motor vehicle registration No. KAE 154H - ZB 7035 for failing to make or place warning signs and hazards on the road and failing to park the motor vehicle registration No. KAE 154H-ZB 7035 completely off the tarmac road despite there being enough room/space for him to do so.
30. There is no dispute too that the 2nd Respondent’s driver drove and/or controlled the Bus in such a manner that it rammed into the rear of the Appellant’s vehicle. I think, that in itself is sufficient evidence to determine liability. The accident is not disputed by the Parties as per the testimony of the 1st Respondent.
31. It is well established in law that any driver of motor vehicle should ensure that the distance between his/her motor vehicle and any other ahead of him should be such that, it would enable him/her to control/manage the vehicle in a manner that would prevent a collision from occurring.
32. It is the Appellant’s duty to convince court that his driver was not negligent and thus liability was wrongly entered as against him. Unfortunately, there was no evidence adduced to support this proposition. I have observed that no evidence was placed before court by the Appellant on where exactly the trailer was parked at the time of the accident; whether completely off the road or partly on the road. There was no evidence also adduced to show that the Appellant’s driver had placed warning signs and hazards on the road to warn other motorists and road users of the presence of the stopped trailer.
33. In the case of Khambi & Another vs Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
34. I find that the 2nd Respondent’s driver / servant/ agent and or employee failed in keeping a safe distance between his motor vehicle and the Appellant’s vehicle and also drove and controlled the Bus recklessly such that he was unable to avoid the collision and that the Appellant’s driver failed to prove that he placed warning signs and hazards on the road and failing to park the motor vehicle registration No. KAE 154H-ZB 7035 completely off the tarmac road.
35. Accordingly, I am of the opinion that the 2nd Respondent is 80% liable and the Appellant 20% liable for the accident.
Quantum
36. Regarding quantum, the Court of Appeal stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”.
35. In Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30, it was held that:
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either 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 damages.”
36. See also Butt v Khan (1981) KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001; (2004) eKLR.”
37. In the latter case, the Court of Appeal asserted the discretionary nature of general damages awards and observed that:
“An appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance”.
38. There is no dispute that the 1st Respondent sustained severe injuries as a result of the accident. The Medical Report by Dr. Kimuyu Judith dated 24/4/2011, Medical Report by Dr. Maina Ruga (for the 2nd Respondent) dated 15/1/2007, Report by Dr. Yusuf Kodwalla dated 24/9/2008. The 1st Respondent’s injuries were life threatening and left him maimed following the accident leaving him to deal with the social stigma of being a one-legged man. The injuries caused the 1st Respondent to be admitted in various hospitals for over 7 months.
39. In the most recent report by Dr. Wokabi for the Appellant dated 19/9/2019, Dr. Wokabi confirmed the multiple injuries and noted that they were multiple and major. Dr. Wokabi also noted that the 1st Respondent was disabled as a result of the accident and assessed the degree of permanent disability at 80%.
40. Doctor Kimuyu for the 1st Respondent during her examination in 2011 had assessed the permanent disability at 100%, Dr. Maina Ruga for the 1st Defendant assessed the same at 70% in 2007 while Dr. Kodwalla in 2008 assessed the same at 80%.
41. It is therefore clear that the 1st Respondent is permanently incapacitated following the accident.
42. The trial magistrate awarded Kshs.3,800,000/= in General damages, Kshs.700,000/= in loss of earnings, Nil award in costs of future medical expenses and Ksh.229,205/= in special damages plus costs of the suit and interest at court rates from the date of judgement of the trial court until full payment
43. In my considered view, this award cannot be said to be excessive or erroneous and I find no reason to disturb the same.
44. Accordingly, the appeal succeeds partially on the issue of liability where the trial court’s judgement on liability is set aside and substituted with apportionment of liability at 20% against the Appellant and 80% against the 2nd Respondent.
45. The final orders are as follows:
a) Liability -20% against Appellant; 80% against 2nd Respondent
b) General damages Kshs.3,800,000/=
c) Loss of earnings Kshs.700,000/=
d) costs of future medical expenses -NIL
e) Special damages Kshs.229,205/=
f) costs of the suit and interest at court rates from the date of judgement of the trial court until full payment
g) The Appellant shall have half costs of the appeal.
h) A thirty (30) days stay of execution is granted
46. It is so ordered. File closed
JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH JULY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2025
In the presence of :
………................................. for Appellant
……….............................. for Respondent
................ Court Assistant