(An appeal from the judgment and decree of the Chief Magistrate’s Court at Mavoko (B, Ojoo, SPM.) delivered on 27th September 2023 in CMCC No. 174 of 2021)
1. The appellant instituted proceedings against the respondents through his plaint dated 1st February 2021. The appellant alleged that on 23rd November 2020, while walking along the Nairobi – Mombasa road at Mlolongo, motor vehicle registration number KBZ 017R, belonging to the 2nd respondent and driven by the 1st respondent, lost control, veered off the road and knocked him down. As a result, he sustained blunt injuries to the head and right hip joint with swelling and tenderness, lacerations on the right hip region and bruises on the right knee. The appellant sought for general damages, special damages of Kshs. 3,550/-, costs of the suit and interest.
2. By judgment of the trial court dated 20th September 2023, the trial court dismissed the appellant’s claim, finding it unmerited, with each party bearing their own costs. Dissatisfied, the appellant filed a memorandum of appeal dated 26th September 2023 raising three grounds of appeal; that the trial court misdirecting itself on the evidence tendered and arrived at a wrong conclusion on the issue of liability; failed to properly consider the 2nd respondent’s admissions and therefore arrived at a wrong conclusion on liability and erred by failing to assess damages payable to the plaintiff. For those reasons, the appellant prayed that the appeal be allowed, the judgment set aside and substituted with a finding that his suit is merited, together with an assessment of damages and costs of this appeal.
3. The appeal was canvassed by way of written submissions. At the hearing, Mr. Kiptanui, holding brief for Mr. Wachira, appeared for the appellant. The respondents though duly served, neither attended nor filed submissions.
4. The appellant argued that his witnesses clearly established that an accident occurred and that he sustained bodily injuries. He contended that the respondents’ evidence was incredible. In the alternative, he urged that if liability could not be placed wholly on the respondents, it should be apportioned at 50:50. On damages, it was submitted that the appellant was entitled to the sum of Kshs. 800,000.00 in general damages. For this proposition, he relied on the cases of Joseph Nyaboke Nyanchari vs. Stanley Nyabuto Mose [2021] eKLR and Edwin Otieno Japaso vs. Easy Coach Bus Company Limited [2016] eKLR. They urged the court to allow the appeal as prayed.
5. I have considered the submissions, examined the record of appeal and analyzed the law. The Court of Appeal in the case of Wilson Kazungu Katana & 101 others vs. Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR) explained the duty of this court sitting as a first appellate court in the following terms:
“In all these cases the principle has been restated that our duty as a first appellate court is to revisit the evidence that was tendered before the trial court afresh, analyse it, evaluate it and arrive at our own independent conclusion, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving due allowance for that.”
6. The evidence before the trial court is as follows: PW1 PC Pius Kariuki produced the police abstract dated 4th December 2020 confirming that an accident occurred on 23rd November 2020 at around 11:30 a.m. at Mlolongo area, along the Nairobi – Mombasa road. The accident involved the appellant, a pedestrian and motor vehicle registration number KBZ 017R. As a result, the appellant was injured.
7. PW2, the appellant, testified that on the material date, he was a pedestrian walking along the Nairobi-Mombasa highway. On reaching nation centre area, while crossing the road the suit vehicle, coming from the Nairobi direction was being driven at a high speed and carelessly while overlapping, veered off the road and knocked him down resulting in an accident. The appellant testified that following the impact, he sustained injuries on his head, right hip, right thigh, right knee and below the knee. He was assisted by Good Samaritans that rushed him to Shalom Hospital for first aid. The following day, on account of pain, he sought further treatment at Athiriver Health Centre.
8. He later recorded a statement at the police station and was issued with a P3 form. The appellant blamed the respondents’ driver for overtaking without regard for other road users. He denied being intoxicated at the time. He produced treatment notes, a medical report and receipt dated 9th December 2020, P3 form dated 25th November 2020, motor vehicle search and receipt dated 15th January 2021.
9. On the part of the respondents, DW1 the 1st respondent, testified that he was employed by the 2nd respondent on the material day. He confirmed that an accident occurred at around 11:30 a.m., when he was driving on the outer lane, at a moderate speed of 40KPH. Suddenly, a pedestrian emerged onto the road. He swerved to the far right, to avoid him, landed on the side and stopped the car. He claimed that the appellant, on being interrogated by the police, was drunk, incoherent and uninjured and that he got up and continued to walk away from the scene. DW1 denied hitting the appellant and maintained that the appellant was crossing at an undesignated area and was never charged with any traffic offence. He stated that he took photographs of the pedestrian and scene.
10. DW2, Fredrick Musyoka, a principal officer at Fremix Private Investigators, testified that his investigations the suit vehicle was driven from Nairobi towards Mombasa. On reaching Mlolongo Trading Centre, the vehicle got involved in an accident with a pedestrian. His findings revealed that the pedestrian was to blame, as he crossed at an undesignated point and leapt over a trench into the road without ensuring that it was safe. He confirmed that during his investigations, he only interviewed DW1 and did not establish that the appellant was struck by the vehicle.
11. It is not disputed that an accident occurred on 23rd November 2020 at around 11:30 a.m. at Mlolongo area, along the Nairobi – Mombasa road involving the appellant, a pedestrian, and motor vehicle registration number KBZ 017R, driven by the 1st respondent. Each party blamed the other; the appellant alleged that the 1st respondents veered off the road and hit him while the 1st respondent, claimed the appellant caused the accident due to intoxication.
12. As correctly observed by the trial court, liability in such circumstances is best resolved through the testimony of an independent witness. In this case, PW1, the police officer merely produced a police abstract confirming the occurrence of the accident but did not shed light on the circumstances leading to it. On the respondents’ side, DW2, the investigator, failed to interview independent witnesses and relied solely on DW1’s account. Secondly, his investigations were conducted long after the accident occurred and cannot be considered independent as they reinforced the respondents' case.
13. From the evidence before this court, the appellant crossed at an undesignated part of the road, which contributed to the occurrence. However, the respondents, allegations that the appellant caused the accident for being drunk, was not substantiate. In any event, DW1, as the driver, owed a duty of care to all road users and ought to have exercised greater caution. In the absences of clear evidence fixing liability wholly or either party, I find that both parties were negligent. Accordingly, I set aside the trial court’s finding and apportion liability equally at 50:50.
14. Turning to the award of damages, the appellant relied on his medical report and P3 form which confirmed injuries including blunt injures to the head, right high joint with swelling and tenderness, lacerated wound on the right hip region and bruises on the right knee. The injuries were classified as harm.
15. In urging this court to award general damages of Kshs. 800,000.00, the appellant cited the decisions of Joseph Nyaboke Nyanchari vs. Stanley Nyabuto Mose (Supra), where the High Court awarded general damages Kshs. 650,000.00 in which the respondent suffered a chest contusion, right posterior acetabulum fracture, foot drop and peroneal nerve injury and Edwin Otieno Japaso vs. Easy Coach Bus Company Limited (Supra) where the appellant was awarded general damages of Kshs. 500,000.00 for having sustained the following injuries: fracture dislocation of the right little finger, soft tissue injuries to the chest, dislocation of the right hip with a fracture of the acetabulum, fracture of the pelvis involving both superior and inferior pubic rami bilaterally, lacerated cut wound on the anterior left leg and anterior right leg.
16. It is evident that these authorities are not comparable to the present case, as the appellant sustained only soft tissue injuries. The trial magistrate correctly noted that had the claim succeeded, an award of kshs 100,000/- would have been appropriate. The trial court cited the decision in OMN (Minor suing through next friend EMW vs. Jasper Nchonga Magari & another [2021] eKLR where the plaintiff sustained injuries on the right upper limb and at the back of the head. She was awarded Kshs. 70,000.00. That case is more comparable to the circumstances presented herein. Taking into account inflation and current trends I find that award of Kshs. 100,000/- is a fair and commensurate award for the injuries sustained.
17. On special damages, the appellant pleaded and proved Kshs. 3,550.00 supported by receipts. I therefore uphold this award.
18. The upshot of the foregoing analysis is that the appeal succeeds in part as follows:
i. The findings on liability by the trial court are hereby set aside and substituted with a finding of 50:50 apportionment of liability;
ii. The appellant shall be awarded Kshs. 100,000 in general damages subject to the 50:50 apportionment of liability;
iii. The appellant is awarded special damages of Kshs. 3,550.00; subject to the 50:50 apportionment of liability
iv. Since the appeal partially succeeds, each party shall bear their own costs of the appeal, costs of the lower Court case and interest, remain undisturbed.
It is so ordered.
Dated and Delivered at Machakos this 23rd day of April 2026.
1. The appellant instituted proceedings against the respondents through his plaint dated 1st February 2021. The appellant alleged that on 23rd November 2020, while walking along the Nairobi – Mombasa road at Mlolongo, motor vehicle registration number KBZ 017R, belonging to the 2nd respondent and driven by the 1st respondent, lost control, veered off the road and knocked him down. As a result, he sustained blunt injuries to the head and right hip joint with swelling and tenderness, lacerations on the right hip region and bruises on the right knee. The appellant sought for general damages, special damages of Kshs. 3,550/-, costs of the suit and interest.
2. By judgment of the trial court dated 20th September 2023, the trial court dismissed the appellant’s claim, finding it unmerited, with each party bearing their own costs. Dissatisfied, the appellant filed a memorandum of appeal dated 26th September 2023 raising three grounds of appeal; that the trial court misdirecting itself on the evidence tendered and arrived at a wrong conclusion on the issue of liability; failed to properly consider the 2nd respondent’s admissions and therefore arrived at a wrong conclusion on liability and erred by failing to assess damages payable to the plaintiff. For those reasons, the appellant prayed that the appeal be allowed, the judgment set aside and substituted with a finding that his suit is merited, together with an assessment of damages and costs of this appeal.
3. The appeal was canvassed by way of written submissions. At the hearing, Mr. Kiptanui, holding brief for Mr. Wachira, appeared for the appellant. The respondents though duly served, neither attended nor filed submissions.
4. The appellant argued that his witnesses clearly established that an accident occurred and that he sustained bodily injuries. He contended that the respondents’ evidence was incredible. In the alternative, he urged that if liability could not be placed wholly on the respondents, it should be apportioned at 50:50. On damages, it was submitted that the appellant was entitled to the sum of Kshs. 800,000.00 in general damages. For this proposition, he relied on the cases of Joseph Nyaboke Nyanchari vs. Stanley Nyabuto Mose [2021] eKLR and Edwin Otieno Japaso vs. Easy Coach Bus Company Limited [2016] eKLR. They urged the court to allow the appeal as prayed.
5. I have considered the submissions, examined the record of appeal and analyzed the law. The Court of Appeal in the case of Wilson Kazungu Katana & 101 others vs. Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR) explained the duty of this court sitting as a first appellate court in the following terms:
“In all these cases the principle has been restated that our duty as a first appellate court is to revisit the evidence that was tendered before the trial court afresh, analyse it, evaluate it and arrive at our own independent conclusion, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving due allowance for that.”
6. The evidence before the trial court is as follows: PW1 PC Pius Kariuki produced the police abstract dated 4th December 2020 confirming that an accident occurred on 23rd November 2020 at around 11:30 a.m. at Mlolongo area, along the Nairobi – Mombasa road. The accident involved the appellant, a pedestrian and motor vehicle registration number KBZ 017R. As a result, the appellant was injured.
7. PW2, the appellant, testified that on the material date, he was a pedestrian walking along the Nairobi-Mombasa highway. On reaching nation centre area, while crossing the road the suit vehicle, coming from the Nairobi direction was being driven at a high speed and carelessly while overlapping, veered off the road and knocked him down resulting in an accident. The appellant testified that following the impact, he sustained injuries on his head, right hip, right thigh, right knee and below the knee. He was assisted by Good Samaritans that rushed him to Shalom Hospital for first aid. The following day, on account of pain, he sought further treatment at Athiriver Health Centre.
8. He later recorded a statement at the police station and was issued with a P3 form. The appellant blamed the respondents’ driver for overtaking without regard for other road users. He denied being intoxicated at the time. He produced treatment notes, a medical report and receipt dated 9th December 2020, P3 form dated 25th November 2020, motor vehicle search and receipt dated 15th January 2021.
9. On the part of the respondents, DW1 the 1st respondent, testified that he was employed by the 2nd respondent on the material day. He confirmed that an accident occurred at around 11:30 a.m., when he was driving on the outer lane, at a moderate speed of 40KPH. Suddenly, a pedestrian emerged onto the road. He swerved to the far right, to avoid him, landed on the side and stopped the car. He claimed that the appellant, on being interrogated by the police, was drunk, incoherent and uninjured and that he got up and continued to walk away from the scene. DW1 denied hitting the appellant and maintained that the appellant was crossing at an undesignated area and was never charged with any traffic offence. He stated that he took photographs of the pedestrian and scene.
10. DW2, Fredrick Musyoka, a principal officer at Fremix Private Investigators, testified that his investigations the suit vehicle was driven from Nairobi towards Mombasa. On reaching Mlolongo Trading Centre, the vehicle got involved in an accident with a pedestrian. His findings revealed that the pedestrian was to blame, as he crossed at an undesignated point and leapt over a trench into the road without ensuring that it was safe. He confirmed that during his investigations, he only interviewed DW1 and did not establish that the appellant was struck by the vehicle.
11. It is not disputed that an accident occurred on 23rd November 2020 at around 11:30 a.m. at Mlolongo area, along the Nairobi – Mombasa road involving the appellant, a pedestrian, and motor vehicle registration number KBZ 017R, driven by the 1st respondent. Each party blamed the other; the appellant alleged that the 1st respondents veered off the road and hit him while the 1st respondent, claimed the appellant caused the accident due to intoxication.
12. As correctly observed by the trial court, liability in such circumstances is best resolved through the testimony of an independent witness. In this case, PW1, the police officer merely produced a police abstract confirming the occurrence of the accident but did not shed light on the circumstances leading to it. On the respondents’ side, DW2, the investigator, failed to interview independent witnesses and relied solely on DW1’s account. Secondly, his investigations were conducted long after the accident occurred and cannot be considered independent as they reinforced the respondents' case.
13. From the evidence before this court, the appellant crossed at an undesignated part of the road, which contributed to the occurrence. However, the respondents, allegations that the appellant caused the accident for being drunk, was not substantiate. In any event, DW1, as the driver, owed a duty of care to all road users and ought to have exercised greater caution. In the absences of clear evidence fixing liability wholly or either party, I find that both parties were negligent. Accordingly, I set aside the trial court’s finding and apportion liability equally at 50:50.
14. Turning to the award of damages, the appellant relied on his medical report and P3 form which confirmed injuries including blunt injures to the head, right high joint with swelling and tenderness, lacerated wound on the right hip region and bruises on the right knee. The injuries were classified as harm.
15. In urging this court to award general damages of Kshs. 800,000.00, the appellant cited the decisions of Joseph Nyaboke Nyanchari vs. Stanley Nyabuto Mose (Supra), where the High Court awarded general damages Kshs. 650,000.00 in which the respondent suffered a chest contusion, right posterior acetabulum fracture, foot drop and peroneal nerve injury and Edwin Otieno Japaso vs. Easy Coach Bus Company Limited (Supra) where the appellant was awarded general damages of Kshs. 500,000.00 for having sustained the following injuries: fracture dislocation of the right little finger, soft tissue injuries to the chest, dislocation of the right hip with a fracture of the acetabulum, fracture of the pelvis involving both superior and inferior pubic rami bilaterally, lacerated cut wound on the anterior left leg and anterior right leg.
16. It is evident that these authorities are not comparable to the present case, as the appellant sustained only soft tissue injuries. The trial magistrate correctly noted that had the claim succeeded, an award of kshs 100,000/- would have been appropriate. The trial court cited the decision in OMN (Minor suing through next friend EMW vs. Jasper Nchonga Magari & another [2021] eKLR where the plaintiff sustained injuries on the right upper limb and at the back of the head. She was awarded Kshs. 70,000.00. That case is more comparable to the circumstances presented herein. Taking into account inflation and current trends I find that award of Kshs. 100,000/- is a fair and commensurate award for the injuries sustained.
17. On special damages, the appellant pleaded and proved Kshs. 3,550.00 supported by receipts. I therefore uphold this award.
18. The upshot of the foregoing analysis is that the appeal succeeds in part as follows:
i. The findings on liability by the trial court are hereby set aside and substituted with a finding of 50:50 apportionment of liability;
ii. The appellant shall be awarded Kshs. 100,000 in general damages subject to the 50:50 apportionment of liability;
iii. The appellant is awarded special damages of Kshs. 3,550.00; subject to the 50:50 apportionment of liability
iv. Since the appeal partially succeeds, each party shall bear their own costs of the appeal, costs of the lower Court case and interest, remain undisturbed.
It is so ordered.
Dated and Delivered at Machakos this 23rd day of April 2026.