(Being an appeal from the judgment of Hon. M.W. Murage, dated 16.12.22, in Milimani CMCC E11931 of 2021)
The respondent filed a suit against the appellants before the chief magistrate’s court vide a plaint dated 17.6.2021. He sought the following prayers:
a) General damages for pain and suffering
b) Special damages of Kshs. 3550
c) Future medical expenses of Kshs. 400,000
d) Costs of the suit and interest
In response to the plaint, the appellants filed a joint statement of defence dated 8.11.2021. At the hearing, the respondent testified and called two witnesses. The appellants did not adduce any evidence. The learned magistrate considered the evidence and delivered judgment dated 16.12.22 where she found the appellants 100% liable in negligence and awarded general damages of Kshs. 1,600,000, special damages of Kshs. 3550, costs of the suit and interest. Aggrieved by the judgment, the appellants filed the appeal raising the following grounds:
a) That the trial magistrate erred in law and fact by awarding high and excessive sum of Kshs. 1,603,550(sic) as general damages for pain and suffering
b) That the trial magistrate erred in law and fact in finding that the plaintiff sustained injuries claimed in the suit from the accident which occurred on 30.12.2020 which injuries were contrary to the parties’ medical reports and police medical examination
c) That the trial magistrate erred in law and fact in finding the defendants 100% liable for the accident while the plaintiff had not discharged the burden
d) That the trial magistrate erred in law and fact in coming to conclusions which were contrary to evidence, the law and submissions urged before her.
The appeal was disposed of by way of written submissions.
APPELLANTS’ SUBMISSIONS
The appellants submitted that the trial magistrate erred in law and in fact by failing to evaluate the evidence which was contradictory. That the medical documents produced in particular, the medical reports contradicted the police medical examination report which made no mention of any fractures.
That the respondent’s account of how the accident occurred was inconsistent. That in his plaint, the respondent claimed to have been lawfully riding as a pillion passenger on a motorcycle when the accident occurred, however, in his second medical examination, he gave a history of being a pedestrian involved in a road traffic accident. That there were discrepancies in the police abstract which were ignored by the trial magistrate.
The appellant submitted that the learned magistrate erred by failing to consider that the respondent had an obligation to ensure his own safety while on the road and that the court ought to have held the respondent equally negligent.
The appellant further submitted that the trial magistrate erred in law by awarding general damages which were excessive. The appellants cited amongst others, the decided case of Charles Oriwo Odeyo v Apollo Justus Andabwa & Another (2017) eKLR and Denshire Muteti Wambua v Kenya Power & Lighting Company (2013) eKLR.
RESPONDENT’S SUBMISSIONS
The respondent submitted that the case before the trial court was proved on a balance of probabilities as required, particularly as the appellants did not adduce evidence in rebuttal. The respondent submitted that the trial magistrate correctly relied on the relevant principles in arriving at the sum of Kshs. 1,600,000 as general damages. The respondent cited the decided cases including Dennis Nyamweno Openda v Anwarali & Brothers Ltd & Another (2015) KEHC 6577 (KLR).
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the first appellate court is as was stated in Jabane v Olenja (1986) KLR 66 where Hancox J.A. (as he then was) stated:
“I accept this proposition so far as it goes and this court does have power to examine and evaluate the evidence and finding of fact of the trial court in order to determine whether the conclusions reached on the evidence should stand (see Peter v Sunday Post (1968) EA 424. More recently the court has held that it will not likely differ from the finding of fact of the trial judge who had the benefit of seeing and hearing the witnesses and will only interfere with them if they are based on no evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the finding he did”
The evidence before the magistrate was as follows:
PW1 was Senior Sergeant Erick Kaari, who testified as the investigating officer. His evidence was that the appellant’s driver of motor vehicle reg No. KCQ 045Z lost control of the same and it collided with a motorcycle on which the respondent was a pillion passenger as a result of which the respondent sustained injuries.
PW2 was Dr. G.K. Mwaura who examined the respondent and prepared a medical report produced in court as exhibit. The respondent testified as PW3. His evidence was that on 30.12.2020 he was riding as a pillion passenger along Banana-Ruaka Road when at Ruaka, motor vehicle registration number KCQ 045Z was negligently driven at high speed that the driver lost control of the same and the it collided with the motorcycle thereby causing him bodily injuries. He testified that he suffered fracture of left distal and proximal femur fracture of left radius ulna and fracture of ribs on left side of the chest. He blamed the driver of the appellants’ motor vehicle for driving at a speed that was too fast in the circumstances and without sufficient regard for the safety of other road users.
PW2 who had examined the respondent concluded that he had sustained grievous harm with a permanent degree of incapacity assessed at 5%.
ANALYSIS AND DETERMINATION
As a general rule, the burden of proof on the culpability of the appellants lies on the respondent (plaintiff in the lower court). The evidential burden however may shift to the appellants (defendants in the lower court) depending on the circumstances of the case. The standard of proof in civil cases is on a balance of probabilities.
The question as to what amounts to proof on a balance of probabilities was succinctly dealt with by Kimaru J (as he then was) in William Kabogo Gitau v George Thuo & 2 others (2010) 1 KLR 526 when he stated:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% by the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred”
Denning J (as he then was) in Miller v Minister of Pensions (1947) 2 All ER 372 while discussing the standard of proof had this to say:
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say; We think it more probable than not; the burden is discharged, but, if the probabilities are equal, it is not.
This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un)convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
In this case, the evidence that the appellant’s motor vehicle, which was being driven at high speed, lost control and knocked a motorcycle on which the respondent was a pillion passenger is not controverted. It is also not denied that the respondent was the second pillion passenger on the motorcycle. I seek reliance in the case of Rentco East Africa Ltd v Dominic Mutua Ngonzi (2021) KEHC 1079 where Odunga, J (as he then was) stated:
“It was not disputed that the respondent and another person were pillion passengers on the said motorcycle. The law does not permit more than one pillion passenger to be carried on a motorcycle. By riding on the said motorcycle against the law, the respondent exposed himself to danger. Such conduct cannot go un-condemned and it should not be rewarded. Accordingly, the respondent ought to shoulder some blame for such conduct. Accordingly, I find that the appellant ought not to have been found 100% liable. I set aside that finding and substitute therefore 70% liability for the driver of the motor vehicle and find the respondent 30% liable.”
The above decided case is in all fours with this case. Though the respondent’s evidence on how the accident occurred was not controverted, the fact that he violated the Traffic Act and exposed himself to danger ought to have been considered by the trial magistrate. On liability, I find that the appellants were 70% liable in negligence. The respondent shall shoulder 30% liability.
As regards quantum of damages, in the case of Jane Chelagat Bor v Andrew Otieno Onduu (1988-92) 2 KAR 288 (1990-1994) EA 47, the court of appeal held:
“In effort, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principles of law, or has misapprehended the fact, or has for those or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”
In this case, the respondent sustained fracture of left distal and proximal femur, fracture of left radius/ulna and fracture of ribs on the left chest. He suffered permanent degree of incapacity which was assessed at 5%.
Though a report by Dr. P.M. Wambugu produced in evidence at the instance of the defence appeared to cast doubt on how the accident occurred, I am unable to place much premium on the same, regarding how the respondent sustained his injuries, for the simple reason that the issues raised therein ought to have been put to the respondent during cross examination. Dr. Wambugu on his part did not testify in court to enable the respondent test the credibility of his assertion particularly on how the respondent sustained his injuries. His report on the circumstances of the accident amount to hearsay. Nonetheless, he equally found that the respondent had suffered injuries which left him with 6% permanent incapacitation.
As regards submissions that the P3 form (police medical examination report) did not mention fractures, I have noted that in section B (4) of the P3 form, a medic who filled the same indicated that the respondent had received treatment and x-rays reports had showed fractures.
The trial magistrate in assessing general damages relied on the case of New Original Investment Co. Ltd v Benard Kimatu Muia (2019) eKLR where the claimant was awarded Kshs. 2,000,000 as general damages and the case of Mwaura Muiruri v Suera Flowers Ltd (2014) eKLR where the claimant was awarded Kshs. 1,450,000 as general damages, both cases involving claimants who suffered injuries akin to what the respondent herein sustained. There is nothing to show that the trial magistrate took into account an irrelevant factor or left out of account a relevant one. The amount awarded, in my assessment is not inordinately high as to amount to an erroneous estimate of general damages.
I find that the appeal on quantum is without merit and it accordingly fails.
In the premises, I set aside the finding on liability against the appellant at 100% and substitute therefore 70%. Apart from this, the decision appealed against is confirmed.
Having considered the entire circumstances of this case, I make no order as to costs of the appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY IN KAKAMEGA THIS 8 TH JULY 2026
D.O. ONYANGO
JUDGE
1
The respondent filed a suit against the appellants before the chief magistrate’s court vide a plaint dated 17.6.2021. He sought the following prayers:
a) General damages for pain and suffering
b) Special damages of Kshs. 3550
c) Future medical expenses of Kshs. 400,000
d) Costs of the suit and interest
In response to the plaint, the appellants filed a joint statement of defence dated 8.11.2021. At the hearing, the respondent testified and called two witnesses. The appellants did not adduce any evidence. The learned magistrate considered the evidence and delivered judgment dated 16.12.22 where she found the appellants 100% liable in negligence and awarded general damages of Kshs. 1,600,000, special damages of Kshs. 3550, costs of the suit and interest. Aggrieved by the judgment, the appellants filed the appeal raising the following grounds:
a) That the trial magistrate erred in law and fact by awarding high and excessive sum of Kshs. 1,603,550(sic) as general damages for pain and suffering
b) That the trial magistrate erred in law and fact in finding that the plaintiff sustained injuries claimed in the suit from the accident which occurred on 30.12.2020 which injuries were contrary to the parties’ medical reports and police medical examination
c) That the trial magistrate erred in law and fact in finding the defendants 100% liable for the accident while the plaintiff had not discharged the burden
d) That the trial magistrate erred in law and fact in coming to conclusions which were contrary to evidence, the law and submissions urged before her.
The appeal was disposed of by way of written submissions.
APPELLANTS’ SUBMISSIONS
The appellants submitted that the trial magistrate erred in law and in fact by failing to evaluate the evidence which was contradictory. That the medical documents produced in particular, the medical reports contradicted the police medical examination report which made no mention of any fractures.
That the respondent’s account of how the accident occurred was inconsistent. That in his plaint, the respondent claimed to have been lawfully riding as a pillion passenger on a motorcycle when the accident occurred, however, in his second medical examination, he gave a history of being a pedestrian involved in a road traffic accident. That there were discrepancies in the police abstract which were ignored by the trial magistrate.
The appellant submitted that the learned magistrate erred by failing to consider that the respondent had an obligation to ensure his own safety while on the road and that the court ought to have held the respondent equally negligent.
The appellant further submitted that the trial magistrate erred in law by awarding general damages which were excessive. The appellants cited amongst others, the decided case of Charles Oriwo Odeyo v Apollo Justus Andabwa & Another (2017) eKLR and Denshire Muteti Wambua v Kenya Power & Lighting Company (2013) eKLR.
RESPONDENT’S SUBMISSIONS
The respondent submitted that the case before the trial court was proved on a balance of probabilities as required, particularly as the appellants did not adduce evidence in rebuttal. The respondent submitted that the trial magistrate correctly relied on the relevant principles in arriving at the sum of Kshs. 1,600,000 as general damages. The respondent cited the decided cases including Dennis Nyamweno Openda v Anwarali & Brothers Ltd & Another (2015) KEHC 6577 (KLR).
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the first appellate court is as was stated in Jabane v Olenja (1986) KLR 66 where Hancox J.A. (as he then was) stated:
“I accept this proposition so far as it goes and this court does have power to examine and evaluate the evidence and finding of fact of the trial court in order to determine whether the conclusions reached on the evidence should stand (see Peter v Sunday Post (1968) EA 424. More recently the court has held that it will not likely differ from the finding of fact of the trial judge who had the benefit of seeing and hearing the witnesses and will only interfere with them if they are based on no evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the finding he did”
The evidence before the magistrate was as follows:
PW1 was Senior Sergeant Erick Kaari, who testified as the investigating officer. His evidence was that the appellant’s driver of motor vehicle reg No. KCQ 045Z lost control of the same and it collided with a motorcycle on which the respondent was a pillion passenger as a result of which the respondent sustained injuries.
PW2 was Dr. G.K. Mwaura who examined the respondent and prepared a medical report produced in court as exhibit. The respondent testified as PW3. His evidence was that on 30.12.2020 he was riding as a pillion passenger along Banana-Ruaka Road when at Ruaka, motor vehicle registration number KCQ 045Z was negligently driven at high speed that the driver lost control of the same and the it collided with the motorcycle thereby causing him bodily injuries. He testified that he suffered fracture of left distal and proximal femur fracture of left radius ulna and fracture of ribs on left side of the chest. He blamed the driver of the appellants’ motor vehicle for driving at a speed that was too fast in the circumstances and without sufficient regard for the safety of other road users.
PW2 who had examined the respondent concluded that he had sustained grievous harm with a permanent degree of incapacity assessed at 5%.
ANALYSIS AND DETERMINATION
As a general rule, the burden of proof on the culpability of the appellants lies on the respondent (plaintiff in the lower court). The evidential burden however may shift to the appellants (defendants in the lower court) depending on the circumstances of the case. The standard of proof in civil cases is on a balance of probabilities.
The question as to what amounts to proof on a balance of probabilities was succinctly dealt with by Kimaru J (as he then was) in William Kabogo Gitau v George Thuo & 2 others (2010) 1 KLR 526 when he stated:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% by the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred”
Denning J (as he then was) in Miller v Minister of Pensions (1947) 2 All ER 372 while discussing the standard of proof had this to say:
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say; We think it more probable than not; the burden is discharged, but, if the probabilities are equal, it is not.
This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un)convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
In this case, the evidence that the appellant’s motor vehicle, which was being driven at high speed, lost control and knocked a motorcycle on which the respondent was a pillion passenger is not controverted. It is also not denied that the respondent was the second pillion passenger on the motorcycle. I seek reliance in the case of Rentco East Africa Ltd v Dominic Mutua Ngonzi (2021) KEHC 1079 where Odunga, J (as he then was) stated:
“It was not disputed that the respondent and another person were pillion passengers on the said motorcycle. The law does not permit more than one pillion passenger to be carried on a motorcycle. By riding on the said motorcycle against the law, the respondent exposed himself to danger. Such conduct cannot go un-condemned and it should not be rewarded. Accordingly, the respondent ought to shoulder some blame for such conduct. Accordingly, I find that the appellant ought not to have been found 100% liable. I set aside that finding and substitute therefore 70% liability for the driver of the motor vehicle and find the respondent 30% liable.”
The above decided case is in all fours with this case. Though the respondent’s evidence on how the accident occurred was not controverted, the fact that he violated the Traffic Act and exposed himself to danger ought to have been considered by the trial magistrate. On liability, I find that the appellants were 70% liable in negligence. The respondent shall shoulder 30% liability.
As regards quantum of damages, in the case of Jane Chelagat Bor v Andrew Otieno Onduu (1988-92) 2 KAR 288 (1990-1994) EA 47, the court of appeal held:
“In effort, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principles of law, or has misapprehended the fact, or has for those or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”
In this case, the respondent sustained fracture of left distal and proximal femur, fracture of left radius/ulna and fracture of ribs on the left chest. He suffered permanent degree of incapacity which was assessed at 5%.
Though a report by Dr. P.M. Wambugu produced in evidence at the instance of the defence appeared to cast doubt on how the accident occurred, I am unable to place much premium on the same, regarding how the respondent sustained his injuries, for the simple reason that the issues raised therein ought to have been put to the respondent during cross examination. Dr. Wambugu on his part did not testify in court to enable the respondent test the credibility of his assertion particularly on how the respondent sustained his injuries. His report on the circumstances of the accident amount to hearsay. Nonetheless, he equally found that the respondent had suffered injuries which left him with 6% permanent incapacitation.
As regards submissions that the P3 form (police medical examination report) did not mention fractures, I have noted that in section B (4) of the P3 form, a medic who filled the same indicated that the respondent had received treatment and x-rays reports had showed fractures.
The trial magistrate in assessing general damages relied on the case of New Original Investment Co. Ltd v Benard Kimatu Muia (2019) eKLR where the claimant was awarded Kshs. 2,000,000 as general damages and the case of Mwaura Muiruri v Suera Flowers Ltd (2014) eKLR where the claimant was awarded Kshs. 1,450,000 as general damages, both cases involving claimants who suffered injuries akin to what the respondent herein sustained. There is nothing to show that the trial magistrate took into account an irrelevant factor or left out of account a relevant one. The amount awarded, in my assessment is not inordinately high as to amount to an erroneous estimate of general damages.
I find that the appeal on quantum is without merit and it accordingly fails.
In the premises, I set aside the finding on liability against the appellant at 100% and substitute therefore 70%. Apart from this, the decision appealed against is confirmed.
Having considered the entire circumstances of this case, I make no order as to costs of the appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY IN KAKAMEGA THIS 8 TH JULY 2026
D.O. ONYANGO
JUDGE
1