(Being an appeal from the judgment and decree delivered by Hon. D. O. Mbeja (Principal Magistrate) on 28th November 2024 at Nairobi in Milimani Commercial MCCC No. E909 of 2022)
1. The appellants filed this appeal through a memorandum dated 20th December 2024. The appeal is on two issues, liability and quantum of damages, in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellants were the defendants while the respondent was the plaintiff before the trial court.
3. At the trial, the respondent James Kamau Kabiru testified as PW 1 and called two other witnesses, PW 2, PC Dickson Andete of Langata police station and PW 3, David Njuguna, an eye witness.
4. The respondent and PW 2 adopted their respective witness statements as evidence in chief. The claim by the respondent in the trial court through his plaint amended on 28th August 2023, his witness statement and testimony in court and that of PW 2 was that the respondent was injured in a road traffic accident which occurred on 15th December 2021 along Langata road near Luqman petrol station. The accident involved the motor cycle he was riding registration number KMFV 817K and the appellants’ motor vehicle registration number KBH 876Q. It was his case that he had stopped at the exit of the petrol station before joining Langata road to give way to vehicles along Langata road when the 1st appellant who was driving the accident vehicle came from behind and rammed into the motor cycle from the rear. He fell off the motorcycle and was injured as a result and thereby suffered damage and loss for which he holds the 1st appellant responsible in negligence and the second appellant vicariously liable.
5. PW 3, the police officer produced the police abstract dated 15th February 2022 issued after the accident was reported at the police station. The police abstract indicated that the respondent was blamed for the accident. However, PW 3 was not the investigating officer of the case.
6. The respondent also adopted and produced as exhibits the documents as listed in his list dated 24th February 2022. The documents were: 1). Demand letter before filing suit dated 17th February 2022. 2). Copy of medical report dated 3rd February 2022 from Dr. G. K. Mwaura together with a receipt of the same data. 3). Copy of P3 form. 4). Copies of medical treatment notes from Langata hospital and the Nairobi West hospital and medical expenses receipts. 5). Motor vehicle copy of records from NTSA for motor vehicle registration number KBH 876Q showing that it was owned China Wu Yi Company Ltd, the 2nd appellant.
7. The respondent prayed for general damages for pain, suffering and loss of amenities, special damages of KShs 38,050/=, costs of the suit and interest thereon.
8. The 1st and 2nd appellants entered appearance and filed a common statement of defence amended on 6th October and denied the respondent’s claim in toto. In the alternative they blamed the respondent for the accident claiming that it was due to carelessness or negligence on his part. They also denied that the 2nd appellant was vicariously liable for the acts of his driver, agent, servant or employee and put the respondent to strict proof thereof. They equally denied that the doctrine of res ipsa loquitor was applicable in the circumstances of the case.
9. The defendants on their part called one witness, Brian (Otieno) Peter Muthiani, the 1st appellant who was the driver of the vehicle registration number KBH 876Q. He adopted his witness statement dated 14th March 2021. His evidence was that the respondent while riding his motor cycle joined Langata road from the left side of the vehicle which was the wrong side and in the process the motor cycle slightly hit the vehicle that the 1st respondent was driving. The respondent fell down and sustained injuries to his leg. The 1st respondent helped the respondent and took him to hospital where he received full treatment. The 1st appellant afterwards reported the accident at Langata police station and after investigations it was established that the rider was to blame for the accident for driving on the wrong side of the road.
10. The 1st appellant also produced a police abstract dated 17th December 2021 which showed that the rider of the motor cycle was to blame for the accident.
11. After trial the learned trial magistrate in his judgment found the appellants wholly liable for the accident and awarded the respondent general damages of KShs 1,000,000/=, special damages of KShs 38,050/= together with costs and interest at court rates from the date of filing suit.
12. The appellants were dissatisfied with that decision on liability and award of general damages and have filed the present appeal based on five grounds as follows:
a. that the learned trial magistrate erred in law and in fact by holding the appellants 100% liable for the accident when in court no evidence was placed before the trial court to support such a finding.
b. that the learned trial magistrate erred in law and in fact in failing to appreciate or take into consideration the appellant’s submissions or at all.
c. that the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on both aspects of liability and quantum of damages.
d. that the learned trial magistrate erred in making an award of KShs 1,000,000/= as compensation for general damages which was inordinately high and excessive in the circumstances thus occasioning a miscarriage of justice.
e. that the learned trial magistrate consequently erred in law and in fact in awarding costs and interest thereto.
13. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order dismissing the respondent’s suit in the trial court. In the alternative, the court to apportion full liability against the respondent. In the further alternative the court to reassess the damages awarded to the respondent.
14. The appeal was canvassed by way of written submissions filed by both parties.
15. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
16. The issue for determination herein is whether or not the learned trial magistrate properly evaluated the evidence before him and acted on correct principles and arrived at the correct conclusion on the issues of liability and assessment of damages.
17. Learned counsel for the appellant submits that the learned trial magistrate made findings that contradicted the evidence tendered at the trial. Learned counsel has cited the following excerpt from the trial court judgment:
“The occurrence of the accident herein is not disputed. Evidence so far on record suggest that the first defendant is to blame for causing the accident. He ought to have taken reasonable measures to avoid the accident by slowing down or otherwise acting in a manner that could have aided him to avoid the accident. It is apparent from the evidence so far on record that the first defendant was reckless and negligent in the manner he drove the suit motor vehicle. The second defendant is also vicariously liable. This court is inclined to hold the defendants liable for causing the accident jointly and severally. Given the circumstances obtaining above, this court is satisfied that the plaintiff has established a prima facie case against the defendants on a balance of probabilities. I will hold the defendants liable for causation of the accident wholly all circumstances considered".
18. Learned counsel for the respondent, citing various authorities, submits on one single issue, that an appellate court should not interfere with the exercise of discretion of a trial court. The cases cited are Ratnam v. Cumarasamy and another [1964]3 All E.R. 933; Mbogo vs Shah and another (1968) E.A 93; Peter Mburu Echaria v Priscilla Njeri Echaria [2001] KECA 349 (KLR); Court of Appeal, Civil Application No. NAI 21 OF 1999 Samken Limited Abercrombie & Kent Limited v Mercedes Sanchez Rau Tussel, Mohammed Osman. All the cases are on the exercise of the court’s discretion in applications. They are not on the court’s findings of facts in a main suit. They are therefore not useful.
19. I think the correct citation for the exercise of a court’s discretion on findings of fact in a full trial are as held in the case cited by learned counsel for the appellants of Mwangi & another v Wambugu [1984] KECA 13 (KLR) where Kneller, J.A. held that:
“The law on this used to be that, there should be no interference by this court with the findings of fact about the contribution to an accident by two or more negligent drivers, save in exceptional circumstances, because this is an individual choice or exercise of a discretion. British Fame (Owners) v MacGregor (Owners), [1943] 1 A11 ER 33. Sir Ronald Sinclair, P in Shariff v Sethna, [1963] EA 239, 249 (CA-K). Where the trial judge has found, however, that there is no contribution, this court should not interfere unless satisfied, he was wrong, but if satisfied, then this court has a duty to interfere and it is not restricted to exceptional cases. Sir Charles Newbold, P in Karis v Solanki, [1969] EA 319, 320 (CA-K).
A member of an appellate court, is not bound to accept the learned judge’s findings of fact, if it appears either that, (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or, (b) if the impression based on the demeanour of a witness, is inconsistent with the evidence in the case generally.”
20. In the same judgment, Hancox, J. held that:
“A Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did.”
21. It follows from the decisions above that determination on the issue of contributory negligence is at the discretion of the trial court. However, where circumstances as outlined in the decisions above show that the trial court was wrong then this court has a duty to interfere with that finding.
22. Learned counsel for the appellant has extensively submitted on the fact that the two police abstracts produced in court showed that the rider of the motor cycle and not the driver of the vehicle was blamed for the accident by the police as indicated in the police abstract.
23. I note that the judgment of the learned trial magistrate does not seem to point to which evidence the court relied upon to conclude that the 1st appellant was to blame for the accident. The excerpt above taken from the judgment of the trial court as provided by learned counsel for the appellant shows that the learned trial magistrate started evaluating the evidence from some general point of view pointing out what would appear to be a mistaken belief that drivers should take the biggest blame for occurrence of road accidents because of their professional capability. However, when he came to the circumstances of this particular case, he did not set out any evidence adduced by the parties. He only said that “evidence so far on record suggests that the first defendant is to blame for causing the accident.” The conclusion by the learned trial magistrate seems to dangerously suggest that he was validating the general thinking of the common person who is not versed in the law of causation and negligence that because a driver is in charge of a vehicle, he should take the blame for any accident that occurs. That is fallacious and cannot be allowed to stand. As was held in the case of Virginia Njeri & another v Joseph Njenga [2020] KEHC 1041 (KLR)
“There is no inexorable rule that ordinarily pedestrians are not hit by vehicles absent the negligence of drivers. Pedestrians may, ordinarily, be as much at fault for accidents as drivers and the fact that a motor vehicle is a “lethal machine” does not, as the Appellants claim, automatically trigger the doctrine of res ipsa loquitur without a showing that the double conditions for its operation have been satisfied.”
24. Unfortunately, by failing to evaluate the evidence to show how he arrived at the decision, he fell in error and his discretion in apportioning liability at 100% against the appellants has to be interfered with.
25. There was evidence from both the respondent and the appellant that required evaluation and determination thereon on which of the two versions was more credible. The respondent’s evidence supported by PW 2 was that the 1st appellant rammed into the motor cycle from behind while the evidence of the 1st appellant was that the motorcyclist was riding on the wrong side the road and that the motor cycle was the one that hit the vehicle. Both parties however seemed to agree that at the time when the collision occurred the driver was exiting Luqman petrol station onto Langata road.
26. The respondent himself produced a police abstract of the accident which he obviously relied upon and it showed that he was to blame for the accident. Indeed, the 1st appellant said that there were police officers nearby and they attended the scene immediately. This evidence was not challenged.
27. Faced with the two conflicting versions of how the accident occurred the learned trial magistrate was required to determine who was the more credible of the witnesses and which version would be relied upon. Had he done that and made a finding, this court would not have had reason to interfere with the exercise of his discretion in apportioning liability.
28. I accept the evidence of the rider and his witness that the motor cycle was hit by the motor vehicle as it exited the petrol station. It appears from the evidence that may have been hit on the rear side and that would be an indication that the rider had substantially passed the exit where the driver was coming from. I also accept the evidence of the motor vehicle driver that it was because the motorcyclist was approaching from the wrong direction as this was backed by the police abstract. Both of them were therefore to blame. The next issue is to what extent was each to blame?
29. The Court of Appeal emphasized in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) that legal causation must be determined by common sense and an analysis of the facts at hand. The Court of Appeal was citing with approval the English case of Stapley v Gypsum Mines Limited [1953] AC 663 at pg 668, where it was stated that:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection in a court of law as this question must be decided as a properly instructed and reasonable jury would decide it ...” and “...The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault but that if one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the fault of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
30. As has often been stated, common sense dictates that the driver, who has under his control a lethal machine has a higher responsibility to look out for persons using the road. Granted that the motor cyclist was also riding his motor cycle, an equally lethal machine, this did not absolve the driver from exercising greater care to look out for other persons using the road at the time. Had he been exercising appropriate care and attention at the time, he no doubt while exiting the petrol station at a low speed should have seen the careless motor cyclist breaching traffic rules but all the same give him way to pass just as he would for a pedestrian. The motor cyclist could have been guilty for breach of traffic rules by riding on the wrong side of the road, thus the police officer’s conclusion in the police abstract that he was to blame for the accident. However, it has not been shown that he was riding at high speed or that he suddenly appeared in front of the driver. The driver had the responsibility to look out for persons using the road and be careful not to ram into them.
31. In the circumstances, having set aside the apportionment of liability by the learned trial magistrate, I apportion liability in the ratio of 60:40 for the respondent against the appellants.
32. The injuries sustained by the respondent are not contested. They were:
a. Compound (open) fracture right tibia.
b. Blunt injury – left elbow.
c. Blunt injuries – chest and back.
d. Wounds and bruises – left leg.
e. Wounds and bruises – right forearm.
33. Two medical reports were produced in evidence by consent of the parties.
34. According to Dr. G. K. Mwaura who examined him first in his report dated 3rd February 2022, the respondent sustained grievous harm injuries and soft tissue injuries. Healing of the fracture was expected but some pain and weakness, inability to lift heavy objects, were to persist. The doctor assessed permanent degree of incapacity at 5% right lower... (this was not completed).
35. The respondent subsequently underwent another medical examination by Dr. Waithaka Mwaura on 30th January 2024 and in his report dated 31st January 2024 indicated that the respondent sustained a fracture of the right fibula. He was managed with a plaster of Paris cast and healing was uneventful. At the time of examination, his complaint was a residual scar. He was in good physical condition and walked without support and no limp. His vital signs were stable and within acceptable normal range. Examination of the lower limb revealed a healed scar on the medial aspect of lower third of shin. No tendemess was evoked on palpation, Dr. Waithaka assessed the degree of residual permanent disability at one percentage (1%) point.
36. On the evidence tendered, the learned trial magistrate awarded the respondent KShs 1,000,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellants to disturb that award on grounds that it is inordinately high.
37. The principles under which an appellate court may interfere with an award of quantum of damages made by a lower court were stated in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) by Kneller J.A. as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be 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 damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
38. Similarly, in the case of Butt v Khan [1978] KECA 24 (KLR), the Court of Appeal, Law, J.A. pronounced himself of the issue as follows:
“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 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.”
39. The appellants contend that the award of general damages by the trial court was inordinately high and that the court failed to follow conventional awards for similar injuries.
40. At the trial, learned counsel for the respondent proposed an award of KShs 1,200,000/= general damages for pain, suffering and loss of amenities. I note that in his submissions, learned counsel did not mention the medical report and findings by Dr. Waithaka which was the later in time. Consequently, having agreed that it be admitted in evidence by consent, it means the contents were not disputed.
41. Learned counsel cited the following cases to support his proposal:
a. Isaac Mworia M’Nabea v David Gikunda [2017] KEHC 1523 (KLR) where the appellant sustained mild injury on the head and neck with decreased level of consciousness and a compound fracture of the right tibia fibula bones. The doctor’s prognosis was that the appellant suffered severe injuries due to the accident and had been in and out of hospital due to complications of the injury. As a result, the appellant had a permanent incapacity and he was out of work and unable to carry out his normal activities. The doctor concluded that the appellant required orthopaedic follow-up and physiotherapy with long term analgesics as well as use of assisted walking. The High Court on appeal noted that these post-traumatic effects were severe, and more specifically, the fact that his injuries resulted into permanent incapacity to work was something that would have immense bearing on the award of general damages and that the trial magistrate did not factor this aspect in the general damages awarded to the appellant. The High Court on appeal set aside the decision by the trial court and substitute thereof with an award of KShs. 1,000,000 as general damages for pain, suffering and loss of amenities, and diminished ability to work.
b. Jacinta Kendi & another v Rose Kimonda Cheboi [2020] KEHC 4566 (KLR) where the respondent produced a medical report by Dr. A.O Wandugu indicating that she sustained the following injuries:
i. Fracture compound of the (L) left tibia/fibula – distal end
ii. Multiple soft tissue injuries
iii. Blood loss
The High Court, in assessing the damages found that apart from the injuries aforementioned, Dr. A.O Wandugu, in his medical report stated inter alia that the respondent’s injuries resulted in permanent weakness of the left leg which was going to be progressive due to the limp and that functional disability was estimated at about 50%. Dr. Wandugu added that the respondent had surgical devices still in place and removal will lead to more pain and scar formation with the estimated cost of removal with supportive medical attention being a minimum of KShs. 250,000/-.
The High Court on appeal sustained the lower court award of KShs 1,200,000/= general damages for pain, suffering and loss of amenities.
42. It is immediately clear from the above decisions that they involved more serious injuries than those sustained by the respondent herein where the last examining Dr. Waithaka observed that the healing of the fracture was uneventful, meaning there were no complications unlike in the two cited cases.
43. The appellants on their part proposed an award of KShs 580,000/= as general damages for pain, suffering and loss of amenities before the lower court. They made available some seven authorities involving fracture of the tibia/fibula. Some involved more serious injuries while others involved less serious injuries than those sustained by the respondent herein. The awards are varied, ranging from as low as KShs 275,000/= to KShs 600,000/=. The authorities are as follows:
a. Atunga v Mogambi (Civil Appeal E009 of 2021) [2022] KЕНС 9854 (KLR) (3 June 2022) (Judgment) where the High Court upheld the trial court’s award for KShs. 550,000/= where the respondent suffered the following injuries; Bruises on the frontal part of the head, Cut wound on the parietal region, Chest trauma, Dislocation of the right wrist, Bruises with multiple cut wounds on the upper limbs, Fracture of the right tibia/fibula bones, Dislocation of the right hip joint and Multiple cut wounds on the lower limbs.
b. DG (Minor suing through her next friend MOR v Richard Otieno Onyisi [2021] eKLR the court awarded the respondent a sum of KShs. 400,000/= where the respondent suffered the following injuries; a chest contusion, left tibia fracture, bruises on the left foot and bruises on the left leg.
c. Kipkebe Limited v Benard Nyambane Nyandega [2020] eKLR on appeal reduced the trial courts award from KShs. 380,000/= to Kshs. 275,000/= for general damages where the respondent sustained a fracture of the tibia, cut wound on the left leg and dislocation of the achilles tendon.
d. Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR the court awarded the respondent a sum of KShs. 600,000/= as compensation for a compound fracture of the tibia/fibula bones on the right leg, deep cut wound on the right leg, head injury with cut wound on the nose, blunt chest injury, soft tissue injury on the left lower limb involving the high and ankle region.
e. Mbithi Muinde William v Rose Mutheu Mulatia [2019] eKLR the respondent was awarded a sum of KShs. 400,000/= as compensation for a swollen, tender left wrist and left leg, fracture of the left 5th metacarpal bone and fracture of the right tibia.
f. Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR where the respondent was awarded a sum of KShs. 450,000/= in general damages for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.
g. Rayan Investments Limited v Jeremiah Mwakulegwa Kasha [2017] eKLR where the court awarded the claimant a sum of KShs. 300,000/= as general damages for a fracture of the right fibula, severe blunt trauma on the left ankle joint, bruises on the right elbow and blunt trauma on the right wrist.
44. Although in each of the cases the injuries involved a fracture of the tibia/fibula, the awards are quite varied. I believe that in extracting the content from the judgment right from the doctors’ reports, through to the lower court to the High Court, it may be that some content on the extent of injuries is lost either by being overlooked or inadvertence.
45. I have in the recent past for similar injuries considered two other cases.
46. In the case of Vincent Mbogholi v Harrison Tunje Chilyalya [2017] KEHC 7765 (KLR) the respondent suffered a fracture of the left tibia leg bone (medial malleolus), blunt object injury to the chest and left lower limb, bruises on the left forearm, right foot and right big toe. On appeal the High Court in 2017 sustained the award of KShs 500,000/= general damages awarded by the trial court.
47. In Charles Kipkoech Leting v Express (K) Ltd & another [2018] KECA 187 (KLR) the Court of Appeal restored an award of KShs 600,000/= made by the magistrates court in 2005 where the appellant sustained a degloving injury and compound fracture of the left tibia. The High Court had disallowed the general damages for what it described as the mis-description of the location of the injury on the appellant’s body.
48. The injuries in the cited cases are largely similar and comparable to those suffered by the respondent herein.
49. In considering whether the learned trial magistrate was in error in her assessment of damages, I have in mind the position in law that in assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable awards but recalling that no two cases are exactly alike as held by the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that:
“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
50. I have read through the judgment of the learned trial magistrate and I note that the learned trial magistrate indicated that he had considered the decisions cited to him by both counsels and made his assessment of damages. However, he did not outline which of the authorities he found were the most appropriate and bore comparable injuries to those of the respondent herein. It is however discernible from the award made that the learned trial magistrate relied on the authorities provided by the respondent which I have found involved more serious injuries than those sustained by the respondent herein. I find that the learned magistrate failed to take into account a relevant factor in the assessment of damages which is the extent of the injuries suffered by the respondent.
51. For that reason, I do find that the assessment of general damages by the trial court has to be disturbed. I find the proposal made by the appellants for an award of KShs 580,000/= for the injuries sustained by the respondent to be most reasonable and in line with trends of awards in similar and comparable injuries in the recent past. In the circumstances, I am satisfied that an award of KShs 600,000/= would be most appropriate compensation as general da
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1. The appellants filed this appeal through a memorandum dated 20th December 2024. The appeal is on two issues, liability and quantum of damages, in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellants were the defendants while the respondent was the plaintiff before the trial court.
3. At the trial, the respondent James Kamau Kabiru testified as PW 1 and called two other witnesses, PW 2, PC Dickson Andete of Langata police station and PW 3, David Njuguna, an eye witness.
4. The respondent and PW 2 adopted their respective witness statements as evidence in chief. The claim by the respondent in the trial court through his plaint amended on 28th August 2023, his witness statement and testimony in court and that of PW 2 was that the respondent was injured in a road traffic accident which occurred on 15th December 2021 along Langata road near Luqman petrol station. The accident involved the motor cycle he was riding registration number KMFV 817K and the appellants’ motor vehicle registration number KBH 876Q. It was his case that he had stopped at the exit of the petrol station before joining Langata road to give way to vehicles along Langata road when the 1st appellant who was driving the accident vehicle came from behind and rammed into the motor cycle from the rear. He fell off the motorcycle and was injured as a result and thereby suffered damage and loss for which he holds the 1st appellant responsible in negligence and the second appellant vicariously liable.
5. PW 3, the police officer produced the police abstract dated 15th February 2022 issued after the accident was reported at the police station. The police abstract indicated that the respondent was blamed for the accident. However, PW 3 was not the investigating officer of the case.
6. The respondent also adopted and produced as exhibits the documents as listed in his list dated 24th February 2022. The documents were: 1). Demand letter before filing suit dated 17th February 2022. 2). Copy of medical report dated 3rd February 2022 from Dr. G. K. Mwaura together with a receipt of the same data. 3). Copy of P3 form. 4). Copies of medical treatment notes from Langata hospital and the Nairobi West hospital and medical expenses receipts. 5). Motor vehicle copy of records from NTSA for motor vehicle registration number KBH 876Q showing that it was owned China Wu Yi Company Ltd, the 2nd appellant.
7. The respondent prayed for general damages for pain, suffering and loss of amenities, special damages of KShs 38,050/=, costs of the suit and interest thereon.
8. The 1st and 2nd appellants entered appearance and filed a common statement of defence amended on 6th October and denied the respondent’s claim in toto. In the alternative they blamed the respondent for the accident claiming that it was due to carelessness or negligence on his part. They also denied that the 2nd appellant was vicariously liable for the acts of his driver, agent, servant or employee and put the respondent to strict proof thereof. They equally denied that the doctrine of res ipsa loquitor was applicable in the circumstances of the case.
9. The defendants on their part called one witness, Brian (Otieno) Peter Muthiani, the 1st appellant who was the driver of the vehicle registration number KBH 876Q. He adopted his witness statement dated 14th March 2021. His evidence was that the respondent while riding his motor cycle joined Langata road from the left side of the vehicle which was the wrong side and in the process the motor cycle slightly hit the vehicle that the 1st respondent was driving. The respondent fell down and sustained injuries to his leg. The 1st respondent helped the respondent and took him to hospital where he received full treatment. The 1st appellant afterwards reported the accident at Langata police station and after investigations it was established that the rider was to blame for the accident for driving on the wrong side of the road.
10. The 1st appellant also produced a police abstract dated 17th December 2021 which showed that the rider of the motor cycle was to blame for the accident.
11. After trial the learned trial magistrate in his judgment found the appellants wholly liable for the accident and awarded the respondent general damages of KShs 1,000,000/=, special damages of KShs 38,050/= together with costs and interest at court rates from the date of filing suit.
12. The appellants were dissatisfied with that decision on liability and award of general damages and have filed the present appeal based on five grounds as follows:
a. that the learned trial magistrate erred in law and in fact by holding the appellants 100% liable for the accident when in court no evidence was placed before the trial court to support such a finding.
b. that the learned trial magistrate erred in law and in fact in failing to appreciate or take into consideration the appellant’s submissions or at all.
c. that the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on both aspects of liability and quantum of damages.
d. that the learned trial magistrate erred in making an award of KShs 1,000,000/= as compensation for general damages which was inordinately high and excessive in the circumstances thus occasioning a miscarriage of justice.
e. that the learned trial magistrate consequently erred in law and in fact in awarding costs and interest thereto.
13. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order dismissing the respondent’s suit in the trial court. In the alternative, the court to apportion full liability against the respondent. In the further alternative the court to reassess the damages awarded to the respondent.
14. The appeal was canvassed by way of written submissions filed by both parties.
15. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
16. The issue for determination herein is whether or not the learned trial magistrate properly evaluated the evidence before him and acted on correct principles and arrived at the correct conclusion on the issues of liability and assessment of damages.
17. Learned counsel for the appellant submits that the learned trial magistrate made findings that contradicted the evidence tendered at the trial. Learned counsel has cited the following excerpt from the trial court judgment:
“The occurrence of the accident herein is not disputed. Evidence so far on record suggest that the first defendant is to blame for causing the accident. He ought to have taken reasonable measures to avoid the accident by slowing down or otherwise acting in a manner that could have aided him to avoid the accident. It is apparent from the evidence so far on record that the first defendant was reckless and negligent in the manner he drove the suit motor vehicle. The second defendant is also vicariously liable. This court is inclined to hold the defendants liable for causing the accident jointly and severally. Given the circumstances obtaining above, this court is satisfied that the plaintiff has established a prima facie case against the defendants on a balance of probabilities. I will hold the defendants liable for causation of the accident wholly all circumstances considered".
18. Learned counsel for the respondent, citing various authorities, submits on one single issue, that an appellate court should not interfere with the exercise of discretion of a trial court. The cases cited are Ratnam v. Cumarasamy and another [1964]3 All E.R. 933; Mbogo vs Shah and another (1968) E.A 93; Peter Mburu Echaria v Priscilla Njeri Echaria [2001] KECA 349 (KLR); Court of Appeal, Civil Application No. NAI 21 OF 1999 Samken Limited Abercrombie & Kent Limited v Mercedes Sanchez Rau Tussel, Mohammed Osman. All the cases are on the exercise of the court’s discretion in applications. They are not on the court’s findings of facts in a main suit. They are therefore not useful.
19. I think the correct citation for the exercise of a court’s discretion on findings of fact in a full trial are as held in the case cited by learned counsel for the appellants of Mwangi & another v Wambugu [1984] KECA 13 (KLR) where Kneller, J.A. held that:
“The law on this used to be that, there should be no interference by this court with the findings of fact about the contribution to an accident by two or more negligent drivers, save in exceptional circumstances, because this is an individual choice or exercise of a discretion. British Fame (Owners) v MacGregor (Owners), [1943] 1 A11 ER 33. Sir Ronald Sinclair, P in Shariff v Sethna, [1963] EA 239, 249 (CA-K). Where the trial judge has found, however, that there is no contribution, this court should not interfere unless satisfied, he was wrong, but if satisfied, then this court has a duty to interfere and it is not restricted to exceptional cases. Sir Charles Newbold, P in Karis v Solanki, [1969] EA 319, 320 (CA-K).
A member of an appellate court, is not bound to accept the learned judge’s findings of fact, if it appears either that, (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or, (b) if the impression based on the demeanour of a witness, is inconsistent with the evidence in the case generally.”
20. In the same judgment, Hancox, J. held that:
“A Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did.”
21. It follows from the decisions above that determination on the issue of contributory negligence is at the discretion of the trial court. However, where circumstances as outlined in the decisions above show that the trial court was wrong then this court has a duty to interfere with that finding.
22. Learned counsel for the appellant has extensively submitted on the fact that the two police abstracts produced in court showed that the rider of the motor cycle and not the driver of the vehicle was blamed for the accident by the police as indicated in the police abstract.
23. I note that the judgment of the learned trial magistrate does not seem to point to which evidence the court relied upon to conclude that the 1st appellant was to blame for the accident. The excerpt above taken from the judgment of the trial court as provided by learned counsel for the appellant shows that the learned trial magistrate started evaluating the evidence from some general point of view pointing out what would appear to be a mistaken belief that drivers should take the biggest blame for occurrence of road accidents because of their professional capability. However, when he came to the circumstances of this particular case, he did not set out any evidence adduced by the parties. He only said that “evidence so far on record suggests that the first defendant is to blame for causing the accident.” The conclusion by the learned trial magistrate seems to dangerously suggest that he was validating the general thinking of the common person who is not versed in the law of causation and negligence that because a driver is in charge of a vehicle, he should take the blame for any accident that occurs. That is fallacious and cannot be allowed to stand. As was held in the case of Virginia Njeri & another v Joseph Njenga [2020] KEHC 1041 (KLR)
“There is no inexorable rule that ordinarily pedestrians are not hit by vehicles absent the negligence of drivers. Pedestrians may, ordinarily, be as much at fault for accidents as drivers and the fact that a motor vehicle is a “lethal machine” does not, as the Appellants claim, automatically trigger the doctrine of res ipsa loquitur without a showing that the double conditions for its operation have been satisfied.”
24. Unfortunately, by failing to evaluate the evidence to show how he arrived at the decision, he fell in error and his discretion in apportioning liability at 100% against the appellants has to be interfered with.
25. There was evidence from both the respondent and the appellant that required evaluation and determination thereon on which of the two versions was more credible. The respondent’s evidence supported by PW 2 was that the 1st appellant rammed into the motor cycle from behind while the evidence of the 1st appellant was that the motorcyclist was riding on the wrong side the road and that the motor cycle was the one that hit the vehicle. Both parties however seemed to agree that at the time when the collision occurred the driver was exiting Luqman petrol station onto Langata road.
26. The respondent himself produced a police abstract of the accident which he obviously relied upon and it showed that he was to blame for the accident. Indeed, the 1st appellant said that there were police officers nearby and they attended the scene immediately. This evidence was not challenged.
27. Faced with the two conflicting versions of how the accident occurred the learned trial magistrate was required to determine who was the more credible of the witnesses and which version would be relied upon. Had he done that and made a finding, this court would not have had reason to interfere with the exercise of his discretion in apportioning liability.
28. I accept the evidence of the rider and his witness that the motor cycle was hit by the motor vehicle as it exited the petrol station. It appears from the evidence that may have been hit on the rear side and that would be an indication that the rider had substantially passed the exit where the driver was coming from. I also accept the evidence of the motor vehicle driver that it was because the motorcyclist was approaching from the wrong direction as this was backed by the police abstract. Both of them were therefore to blame. The next issue is to what extent was each to blame?
29. The Court of Appeal emphasized in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) that legal causation must be determined by common sense and an analysis of the facts at hand. The Court of Appeal was citing with approval the English case of Stapley v Gypsum Mines Limited [1953] AC 663 at pg 668, where it was stated that:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection in a court of law as this question must be decided as a properly instructed and reasonable jury would decide it ...” and “...The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault but that if one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the fault of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
30. As has often been stated, common sense dictates that the driver, who has under his control a lethal machine has a higher responsibility to look out for persons using the road. Granted that the motor cyclist was also riding his motor cycle, an equally lethal machine, this did not absolve the driver from exercising greater care to look out for other persons using the road at the time. Had he been exercising appropriate care and attention at the time, he no doubt while exiting the petrol station at a low speed should have seen the careless motor cyclist breaching traffic rules but all the same give him way to pass just as he would for a pedestrian. The motor cyclist could have been guilty for breach of traffic rules by riding on the wrong side of the road, thus the police officer’s conclusion in the police abstract that he was to blame for the accident. However, it has not been shown that he was riding at high speed or that he suddenly appeared in front of the driver. The driver had the responsibility to look out for persons using the road and be careful not to ram into them.
31. In the circumstances, having set aside the apportionment of liability by the learned trial magistrate, I apportion liability in the ratio of 60:40 for the respondent against the appellants.
32. The injuries sustained by the respondent are not contested. They were:
a. Compound (open) fracture right tibia.
b. Blunt injury – left elbow.
c. Blunt injuries – chest and back.
d. Wounds and bruises – left leg.
e. Wounds and bruises – right forearm.
33. Two medical reports were produced in evidence by consent of the parties.
34. According to Dr. G. K. Mwaura who examined him first in his report dated 3rd February 2022, the respondent sustained grievous harm injuries and soft tissue injuries. Healing of the fracture was expected but some pain and weakness, inability to lift heavy objects, were to persist. The doctor assessed permanent degree of incapacity at 5% right lower... (this was not completed).
35. The respondent subsequently underwent another medical examination by Dr. Waithaka Mwaura on 30th January 2024 and in his report dated 31st January 2024 indicated that the respondent sustained a fracture of the right fibula. He was managed with a plaster of Paris cast and healing was uneventful. At the time of examination, his complaint was a residual scar. He was in good physical condition and walked without support and no limp. His vital signs were stable and within acceptable normal range. Examination of the lower limb revealed a healed scar on the medial aspect of lower third of shin. No tendemess was evoked on palpation, Dr. Waithaka assessed the degree of residual permanent disability at one percentage (1%) point.
36. On the evidence tendered, the learned trial magistrate awarded the respondent KShs 1,000,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellants to disturb that award on grounds that it is inordinately high.
37. The principles under which an appellate court may interfere with an award of quantum of damages made by a lower court were stated in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) by Kneller J.A. as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be 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 damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
38. Similarly, in the case of Butt v Khan [1978] KECA 24 (KLR), the Court of Appeal, Law, J.A. pronounced himself of the issue as follows:
“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 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.”
39. The appellants contend that the award of general damages by the trial court was inordinately high and that the court failed to follow conventional awards for similar injuries.
40. At the trial, learned counsel for the respondent proposed an award of KShs 1,200,000/= general damages for pain, suffering and loss of amenities. I note that in his submissions, learned counsel did not mention the medical report and findings by Dr. Waithaka which was the later in time. Consequently, having agreed that it be admitted in evidence by consent, it means the contents were not disputed.
41. Learned counsel cited the following cases to support his proposal:
a. Isaac Mworia M’Nabea v David Gikunda [2017] KEHC 1523 (KLR) where the appellant sustained mild injury on the head and neck with decreased level of consciousness and a compound fracture of the right tibia fibula bones. The doctor’s prognosis was that the appellant suffered severe injuries due to the accident and had been in and out of hospital due to complications of the injury. As a result, the appellant had a permanent incapacity and he was out of work and unable to carry out his normal activities. The doctor concluded that the appellant required orthopaedic follow-up and physiotherapy with long term analgesics as well as use of assisted walking. The High Court on appeal noted that these post-traumatic effects were severe, and more specifically, the fact that his injuries resulted into permanent incapacity to work was something that would have immense bearing on the award of general damages and that the trial magistrate did not factor this aspect in the general damages awarded to the appellant. The High Court on appeal set aside the decision by the trial court and substitute thereof with an award of KShs. 1,000,000 as general damages for pain, suffering and loss of amenities, and diminished ability to work.
b. Jacinta Kendi & another v Rose Kimonda Cheboi [2020] KEHC 4566 (KLR) where the respondent produced a medical report by Dr. A.O Wandugu indicating that she sustained the following injuries:
i. Fracture compound of the (L) left tibia/fibula – distal end
ii. Multiple soft tissue injuries
iii. Blood loss
The High Court, in assessing the damages found that apart from the injuries aforementioned, Dr. A.O Wandugu, in his medical report stated inter alia that the respondent’s injuries resulted in permanent weakness of the left leg which was going to be progressive due to the limp and that functional disability was estimated at about 50%. Dr. Wandugu added that the respondent had surgical devices still in place and removal will lead to more pain and scar formation with the estimated cost of removal with supportive medical attention being a minimum of KShs. 250,000/-.
The High Court on appeal sustained the lower court award of KShs 1,200,000/= general damages for pain, suffering and loss of amenities.
42. It is immediately clear from the above decisions that they involved more serious injuries than those sustained by the respondent herein where the last examining Dr. Waithaka observed that the healing of the fracture was uneventful, meaning there were no complications unlike in the two cited cases.
43. The appellants on their part proposed an award of KShs 580,000/= as general damages for pain, suffering and loss of amenities before the lower court. They made available some seven authorities involving fracture of the tibia/fibula. Some involved more serious injuries while others involved less serious injuries than those sustained by the respondent herein. The awards are varied, ranging from as low as KShs 275,000/= to KShs 600,000/=. The authorities are as follows:
a. Atunga v Mogambi (Civil Appeal E009 of 2021) [2022] KЕНС 9854 (KLR) (3 June 2022) (Judgment) where the High Court upheld the trial court’s award for KShs. 550,000/= where the respondent suffered the following injuries; Bruises on the frontal part of the head, Cut wound on the parietal region, Chest trauma, Dislocation of the right wrist, Bruises with multiple cut wounds on the upper limbs, Fracture of the right tibia/fibula bones, Dislocation of the right hip joint and Multiple cut wounds on the lower limbs.
b. DG (Minor suing through her next friend MOR v Richard Otieno Onyisi [2021] eKLR the court awarded the respondent a sum of KShs. 400,000/= where the respondent suffered the following injuries; a chest contusion, left tibia fracture, bruises on the left foot and bruises on the left leg.
c. Kipkebe Limited v Benard Nyambane Nyandega [2020] eKLR on appeal reduced the trial courts award from KShs. 380,000/= to Kshs. 275,000/= for general damages where the respondent sustained a fracture of the tibia, cut wound on the left leg and dislocation of the achilles tendon.
d. Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR the court awarded the respondent a sum of KShs. 600,000/= as compensation for a compound fracture of the tibia/fibula bones on the right leg, deep cut wound on the right leg, head injury with cut wound on the nose, blunt chest injury, soft tissue injury on the left lower limb involving the high and ankle region.
e. Mbithi Muinde William v Rose Mutheu Mulatia [2019] eKLR the respondent was awarded a sum of KShs. 400,000/= as compensation for a swollen, tender left wrist and left leg, fracture of the left 5th metacarpal bone and fracture of the right tibia.
f. Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR where the respondent was awarded a sum of KShs. 450,000/= in general damages for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.
g. Rayan Investments Limited v Jeremiah Mwakulegwa Kasha [2017] eKLR where the court awarded the claimant a sum of KShs. 300,000/= as general damages for a fracture of the right fibula, severe blunt trauma on the left ankle joint, bruises on the right elbow and blunt trauma on the right wrist.
44. Although in each of the cases the injuries involved a fracture of the tibia/fibula, the awards are quite varied. I believe that in extracting the content from the judgment right from the doctors’ reports, through to the lower court to the High Court, it may be that some content on the extent of injuries is lost either by being overlooked or inadvertence.
45. I have in the recent past for similar injuries considered two other cases.
46. In the case of Vincent Mbogholi v Harrison Tunje Chilyalya [2017] KEHC 7765 (KLR) the respondent suffered a fracture of the left tibia leg bone (medial malleolus), blunt object injury to the chest and left lower limb, bruises on the left forearm, right foot and right big toe. On appeal the High Court in 2017 sustained the award of KShs 500,000/= general damages awarded by the trial court.
47. In Charles Kipkoech Leting v Express (K) Ltd & another [2018] KECA 187 (KLR) the Court of Appeal restored an award of KShs 600,000/= made by the magistrates court in 2005 where the appellant sustained a degloving injury and compound fracture of the left tibia. The High Court had disallowed the general damages for what it described as the mis-description of the location of the injury on the appellant’s body.
48. The injuries in the cited cases are largely similar and comparable to those suffered by the respondent herein.
49. In considering whether the learned trial magistrate was in error in her assessment of damages, I have in mind the position in law that in assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable awards but recalling that no two cases are exactly alike as held by the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that:
“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
50. I have read through the judgment of the learned trial magistrate and I note that the learned trial magistrate indicated that he had considered the decisions cited to him by both counsels and made his assessment of damages. However, he did not outline which of the authorities he found were the most appropriate and bore comparable injuries to those of the respondent herein. It is however discernible from the award made that the learned trial magistrate relied on the authorities provided by the respondent which I have found involved more serious injuries than those sustained by the respondent herein. I find that the learned magistrate failed to take into account a relevant factor in the assessment of damages which is the extent of the injuries suffered by the respondent.
51. For that reason, I do find that the assessment of general damages by the trial court has to be disturbed. I find the proposal made by the appellants for an award of KShs 580,000/= for the injuries sustained by the respondent to be most reasonable and in line with trends of awards in similar and comparable injuries in the recent past. In the circumstances, I am satisfied that an award of KShs 600,000/= would be most appropriate compensation as general da
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