1. The Respondent herein, Victor Maosa Orina , was the Plaintiff before the trial court where he sued the Appellant seeking general damages for pain, suffering and loss of amenities, special damages of Kshs. 3,550/=, costs and interest arising from a road traffic accident that occurred on 13th August 2020 along Ngong Road involving Motor Vehicle Registration Number KCM 838P and Motorcycle Registration Number KMDP 163C.
2. The Respondent’s case was that he was lawfully travelling as a pillion passenger aboard the motorcycle when the Appellant's motor vehicle was negligently driven causing a collision from which he sustained bodily injuries.
3. The Appellant filed a defence denying negligence and contending that the accident was occasioned solely by the negligence of the rider of the motorcycle.
4. After hearing the parties and their witnesses, the trial court found the Appellant 100% liable and awarded the Respondent:
a) General damages – Kshs. 650,000/=;
b) Special damages – Kshs. 3,550/=;
c) Costs and interest.
5. Aggrieved by the entire judgment, the Appellant lodged the present appeal which is premised on grounds that may be summarized as follows:
a) That the learned magistrate failed to consider the Appellant's defence and evidence;
b) That the court failed to appreciate inconsistencies in the Respondent's evidence;
c) That the court failed to appreciate discrepancies between the pleadings and medical evidence regarding the injuries sustained;
d) That the court failed to properly evaluate evidence elicited during cross-examination on liability and quantum;
e) That the court consequently arrived at an erroneous decision on liability and damages.
6. The appeal was canvassed by way of written submissions which I have considered.
The Appellant's Submissions
7. The Appellant submitted that the learned magistrate erred in finding her wholly liable for the accident and that negligence was not proved on a balance of probabilities. It was submitted that the pleadings contained material inconsistencies regarding the identity of the negligent party and that the trial court failed to appreciate the Appellant's testimony that the rider of the motorcycle caused the accident.
8. Reliance was placed on the decisions in Ogando vs. Watu Credit Ltd & Another [2024] KEHC 3074 (KLR) , Daniel Otieno Migore vs. South Nyanza Sugar Co. Ltd [2018] eKLR and IEBC & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR , for the proposition that parties are bound by their pleadings.
9. Regarding quantum, the Appellant contended that the award of Kshs. 650,000/= was excessive considering the injuries sustained. The Appellant relied on Selenite Contractors Ltd vs. John Muthama Mulonzi [2021] eKLR , where an award of Kshs. 300,000/= was upheld for comparable injuries.
10. The Appellant therefore urged the Court to interfere with the award and substitute it with an award ranging between Kshs. 300,000/= and Kshs. 400,000/=.
11. The Appellant further cited Osman Mohammed & Another vs. Saluro Bundit Mohammed Civil Appeal No. 3 of 1997 on the principles governing appellate interference with awards of damages.
The Respondent's Submissions
12. The Respondent supported the judgment of the trial court in its entirety and submitted that it was merely a pillion passenger at the time of the accident which the police attributed to the negligence of the Appellant’s driver.
13. It was the Respondent’s case that the Appellant did not dispute the occurrence of the accident and that the Appellant failed to join the rider of the motorcycle or any alleged third party to the proceedings.
14. Reliance was placed on West Kenya Sugar Co. Ltd vs. Lilian Auma Saya [2020] eKLR , where the Court held that a passenger cannot ordinarily be held liable for an accident and Kinyua vs. Murage (Civil Appeal E016 of 2023) [2024] KEHC 7882 (KLR) regarding failure to institute third-party proceedings.
15. On quantum, the Respondent submitted that the injuries consisted of fractures of the 3rd and 4th metatarsal bones and that the award of Kshs. 650,000/= was reasonable.
16. Reliance was placed on Tshusho Capital Ltd & Another vs. Stephen Mbatha Muoka [2020] eKLR , where Kshs. 700,000/= was awarded for comparable injuries and Kibathi Gitau vs. Joseph Kiplagat Maina [2020] eKLR , where Kshs. 500,000/= was awarded for comparable injuries.
17. The Respondent further cited Franklin Maingi Nkunja v Rose Mutuma & Another [2021] eKLR and Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , on the limited circumstances under which an appellate court may interfere with an award of damages.
18. The Respondent urged this Court to dismiss the appeal with costs.
Duty of a First Appellate Court
19. This being a first appeal, this Court is under a duty to re-evaluate, reassess and re-analyze the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
20. The principle was succinctly stated in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that a first appellate court must reconsider the evidence, evaluate it and draw its own conclusions while giving allowance for the fact that it did not see or hear the witnesses.
21. The same principle was reiterated in Makube vs. Nyamuro [1983] KLR 403 and Kiruga vs. Kiruga [1988] KLR 348 .
Analysis and Determination
22. Having considered the Record of Appeal and the submissions of the parties, I find that the main issue for determination is whether the trial court erred in findings on liability and quantum.
23. On liability, the evidence on record shows that the Respondent was a pillion passenger aboard Motorcycle Registration Number KMDP 163C. The Respondent's evidence was corroborated by the police abstract produced during the trial. The Appellant admitted the occurrence of the accident but blamed the motorcycle rider for it.
24. A careful review of the record reveals that although the Appellant sought to attribute blame to the rider of the motorcycle, she neither joined the rider as a third party nor sought contribution or indemnity against him.
25. The law is settled that where a defendant alleges negligence against a third party, such party ought to be joined to the proceedings to enable the court determine the extent of liability. I find that the reasoning in Kinyua vs. Murage (supra) is persuasive in this regard.
26. I further note that the Respondent was merely a passenger at the time of the accident and agree with the principle established in West Kenya Sugar Co. Ltd vs. Lilian Auma Saya [2020] eKLR that a passenger ordinarily bears no responsibility for the occurrence of an accident unless evidence demonstrates otherwise.
27. I therefore find no basis for interfering with the finding that the Respondent was blameless and accordingly uphold the finding on liability.
28. On quantum, I take cognizance of the principles governing appellate interference with awards of damages which are well settled. In Catholic Diocese of Kisumu vs. Sophia Achieng Tete [2004] 2 KLR 55 , the Court held that an appellate court will only interfere with the trial court’s decision on damages where the trial court acted on wrong principles, took into account irrelevant factors, failed to take into account relevant factors or arrived at an award that is inordinately high or low.
29. In the instant case, the injuries sustained by the Respondent were fractures of the 3rd and 4th metatarsal bones.
30. The authorities cited by the parties reveal a range of awards between Kshs. 300,000/= and Kshs. 700,000/= for comparable injuries.
31. The trial court considered the authorities before it and particularly relied on Njora Samuel vs. Richard Nyang'au Orechi [2018] eKLR in arriving at the award of Kshs. 650,000/=.
32. This Court has also considered the Appellant's contention that there were discrepancies between the pleadings and the medical report. The record shows that the trial magistrate addressed the issue and accepted the doctor's explanation that the reference to metacarpal bones was a typographical error. The trial court was therefore entitled to evaluate the totality of the evidence and determine whether the injuries had been proved.
33. Guided by the comparable authorities cited by both parties, and bearing in mind prevailing inflationary trends, I am not persuaded that the award of Kshs. 650,000/= was so inordinately high as to warrant appellate interference. I therefore decline to disturb the award.
34. In the end, I find that the instant appeal lacks merit and I therefore dismiss it with costs to the Respondent. It is so ordered.
2. The Respondent’s case was that he was lawfully travelling as a pillion passenger aboard the motorcycle when the Appellant's motor vehicle was negligently driven causing a collision from which he sustained bodily injuries.
3. The Appellant filed a defence denying negligence and contending that the accident was occasioned solely by the negligence of the rider of the motorcycle.
4. After hearing the parties and their witnesses, the trial court found the Appellant 100% liable and awarded the Respondent:
a) General damages – Kshs. 650,000/=;
b) Special damages – Kshs. 3,550/=;
c) Costs and interest.
5. Aggrieved by the entire judgment, the Appellant lodged the present appeal which is premised on grounds that may be summarized as follows:
a) That the learned magistrate failed to consider the Appellant's defence and evidence;
b) That the court failed to appreciate inconsistencies in the Respondent's evidence;
c) That the court failed to appreciate discrepancies between the pleadings and medical evidence regarding the injuries sustained;
d) That the court failed to properly evaluate evidence elicited during cross-examination on liability and quantum;
e) That the court consequently arrived at an erroneous decision on liability and damages.
6. The appeal was canvassed by way of written submissions which I have considered.
The Appellant's Submissions
7. The Appellant submitted that the learned magistrate erred in finding her wholly liable for the accident and that negligence was not proved on a balance of probabilities. It was submitted that the pleadings contained material inconsistencies regarding the identity of the negligent party and that the trial court failed to appreciate the Appellant's testimony that the rider of the motorcycle caused the accident.
8. Reliance was placed on the decisions in Ogando vs. Watu Credit Ltd & Another [2024] KEHC 3074 (KLR) , Daniel Otieno Migore vs. South Nyanza Sugar Co. Ltd [2018] eKLR and IEBC & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR , for the proposition that parties are bound by their pleadings.
9. Regarding quantum, the Appellant contended that the award of Kshs. 650,000/= was excessive considering the injuries sustained. The Appellant relied on Selenite Contractors Ltd vs. John Muthama Mulonzi [2021] eKLR , where an award of Kshs. 300,000/= was upheld for comparable injuries.
10. The Appellant therefore urged the Court to interfere with the award and substitute it with an award ranging between Kshs. 300,000/= and Kshs. 400,000/=.
11. The Appellant further cited Osman Mohammed & Another vs. Saluro Bundit Mohammed Civil Appeal No. 3 of 1997 on the principles governing appellate interference with awards of damages.
The Respondent's Submissions
12. The Respondent supported the judgment of the trial court in its entirety and submitted that it was merely a pillion passenger at the time of the accident which the police attributed to the negligence of the Appellant’s driver.
13. It was the Respondent’s case that the Appellant did not dispute the occurrence of the accident and that the Appellant failed to join the rider of the motorcycle or any alleged third party to the proceedings.
14. Reliance was placed on West Kenya Sugar Co. Ltd vs. Lilian Auma Saya [2020] eKLR , where the Court held that a passenger cannot ordinarily be held liable for an accident and Kinyua vs. Murage (Civil Appeal E016 of 2023) [2024] KEHC 7882 (KLR) regarding failure to institute third-party proceedings.
15. On quantum, the Respondent submitted that the injuries consisted of fractures of the 3rd and 4th metatarsal bones and that the award of Kshs. 650,000/= was reasonable.
16. Reliance was placed on Tshusho Capital Ltd & Another vs. Stephen Mbatha Muoka [2020] eKLR , where Kshs. 700,000/= was awarded for comparable injuries and Kibathi Gitau vs. Joseph Kiplagat Maina [2020] eKLR , where Kshs. 500,000/= was awarded for comparable injuries.
17. The Respondent further cited Franklin Maingi Nkunja v Rose Mutuma & Another [2021] eKLR and Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , on the limited circumstances under which an appellate court may interfere with an award of damages.
18. The Respondent urged this Court to dismiss the appeal with costs.
Duty of a First Appellate Court
19. This being a first appeal, this Court is under a duty to re-evaluate, reassess and re-analyze the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
20. The principle was succinctly stated in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that a first appellate court must reconsider the evidence, evaluate it and draw its own conclusions while giving allowance for the fact that it did not see or hear the witnesses.
21. The same principle was reiterated in Makube vs. Nyamuro [1983] KLR 403 and Kiruga vs. Kiruga [1988] KLR 348 .
Analysis and Determination
22. Having considered the Record of Appeal and the submissions of the parties, I find that the main issue for determination is whether the trial court erred in findings on liability and quantum.
23. On liability, the evidence on record shows that the Respondent was a pillion passenger aboard Motorcycle Registration Number KMDP 163C. The Respondent's evidence was corroborated by the police abstract produced during the trial. The Appellant admitted the occurrence of the accident but blamed the motorcycle rider for it.
24. A careful review of the record reveals that although the Appellant sought to attribute blame to the rider of the motorcycle, she neither joined the rider as a third party nor sought contribution or indemnity against him.
25. The law is settled that where a defendant alleges negligence against a third party, such party ought to be joined to the proceedings to enable the court determine the extent of liability. I find that the reasoning in Kinyua vs. Murage (supra) is persuasive in this regard.
26. I further note that the Respondent was merely a passenger at the time of the accident and agree with the principle established in West Kenya Sugar Co. Ltd vs. Lilian Auma Saya [2020] eKLR that a passenger ordinarily bears no responsibility for the occurrence of an accident unless evidence demonstrates otherwise.
27. I therefore find no basis for interfering with the finding that the Respondent was blameless and accordingly uphold the finding on liability.
28. On quantum, I take cognizance of the principles governing appellate interference with awards of damages which are well settled. In Catholic Diocese of Kisumu vs. Sophia Achieng Tete [2004] 2 KLR 55 , the Court held that an appellate court will only interfere with the trial court’s decision on damages where the trial court acted on wrong principles, took into account irrelevant factors, failed to take into account relevant factors or arrived at an award that is inordinately high or low.
29. In the instant case, the injuries sustained by the Respondent were fractures of the 3rd and 4th metatarsal bones.
30. The authorities cited by the parties reveal a range of awards between Kshs. 300,000/= and Kshs. 700,000/= for comparable injuries.
31. The trial court considered the authorities before it and particularly relied on Njora Samuel vs. Richard Nyang'au Orechi [2018] eKLR in arriving at the award of Kshs. 650,000/=.
32. This Court has also considered the Appellant's contention that there were discrepancies between the pleadings and the medical report. The record shows that the trial magistrate addressed the issue and accepted the doctor's explanation that the reference to metacarpal bones was a typographical error. The trial court was therefore entitled to evaluate the totality of the evidence and determine whether the injuries had been proved.
33. Guided by the comparable authorities cited by both parties, and bearing in mind prevailing inflationary trends, I am not persuaded that the award of Kshs. 650,000/= was so inordinately high as to warrant appellate interference. I therefore decline to disturb the award.
34. In the end, I find that the instant appeal lacks merit and I therefore dismiss it with costs to the Respondent. It is so ordered.