[1] The appellants herein, Classic Savings and Credit Co-operative Society Limited and Gede Enterprises, were the defendants in the lower court suit, being Kapsabet Chief Magistrate’s Civil Case No. E105 of 2019 . They were sued by the respondent, Charles Kipkoech Ng’eno , for compensation in damages in respect of injuries sustained by him in a road traffic accident that occurred on or about 3 rd May 2019 involving a Motorcycle Registration Number KMDU 370D and Motor Vehicle Registration Number KCT 493G.
[2] The respondent had alleged that on the 3 rd May 2019, he was travelling as a lawful pillion passenger aboard Motor Cycle Registration KMDU 370D along Kapsabet-Chavakali road when at Chepsonoi area, the appellants agent, driver, employee and/or servant while driving Motor Vehicle Registration No. KCT 493G TOYOTA HIACE drove so negligently and/or carelessly and without any regard to other road users and pedestrians that he failed to take control of the said Motor Vehicle and caused it to veer off its lane and rammed into Motor Cycle Registration KMDU 370D thereby knocking him. He further averred that he sustained serious injuries in the said accident, the particulars whereof were given at paragraph nine (9) of the Plaint.
[3] Accordingly, the respondent prayed for the following reliefs from the lower court:
[a] Special damages as prayed above
[b] General damages for pain suffering and loss of amenities
[c] Costs of the suit together with interest at court rates
[d] Any other relief deemed fit by the court
[4] The appellants denied the respondent’s allegations vide their Defence dated 20 th September 2019 as amended on 22 nd January 2021. They denied not only the occurrence of the alleged accident but also that the respondent was injured as alleged by him. They averred that the claim was fraudulent; and contended that, if indeed an accident occurred as alleged then same was caused by the negligence on the part of the respondent and the owner of the subject motor cycle. Accordingly, the appellants prayed for the dismissal of the suit.
[5] Upon hearing the parties, the lower court found the appellants 100% liable for the accident. The court then proceeded to assess general damages payable at Kshs. 200,000/= together with special damages of Kshs. 13,350/=. It therefore entered judgment in the respondent’s favour in the total sum of Kshs. 213,350/= together with interest and costs.
[6] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 2 nd August 2024. The appellant raised a total of five (5) grounds of appeal against the judgment delivered on 5 th July 2024 as follows:
[a] THAT the learned magistrate erred in law and in fact by awarding 100% liability as against the appellant and by failing to take into account the evidence adduced by the appellants herein.
[b] THAT the learned magistrate erred in law and in fact by awarding Kshs. 200,000/= as general damages which award is inordinately high in view of the injuries sustained by the respondent.
[c] THAT the learned magistrate misdirected himself by failing to take into account the well-established principle requiring comparable awards to be made for comparable injuries sustained thereby falling into an error by awarding Kshs. 200,000/= which award is manifestly excessive.
[d] THAT the learned magistrate erred in law and in fact by awarding Kshs. 200,000/= as general damages which award is excessive in view of the injuries sustained by the respondent thereby deviating from the principle of stare decisis requiring that comparable awards be made for comparable injuries.
[e] THAT the learned magistrate erred in law and in fact by disregarding and failing to appreciate the judicial authorities on quantum cited by the appellant in their written submissions thereby making an award on general damages that is unreasonably high in the circumstances and connotes an erroneous estimate of the award on general damages in view of the injuries sustained by the respondent.
[7] In the premises, the appellants prayed that their appeal be allowed, the judgment delivered on the 5 th day of July, 2024 in Kapsabet CMCC No. 105 of 2019 by Hon. Samuel M. Mokua (CM) on the issue of quantum be set aside and an order re-assessing the award on quantum downwards be made. They also prayed for costs of the appeal.
[8] On the 3 rd March 2026, the court issued directions that the appeal be canvassed by way of written submissions. Hence, through the firm of KRK Advocates LLP, the appellants filed written submissions dated 4 th May 2026 in which they proposed two issues for determination, namely:
[a] Whether, basing on the evidence tendered before the trial court, they were the cause of the accident of 3 rd May, 2019 so as to be held 100% liable for the occurrence.
[b] Whether the trial magistrate erred in awarding Kshs. 200,000/= as damages for the injuries suffered.
[9] In the submission of the appellants the assertions by the respondent that the said motor vehicle was being driven negligently remained mere allegations as there was no evidence tendered in proof thereof. The appellants highlighted the evidence of the Police officer, PC Kiptoo (PW4) who testified on behalf of the respondent and produced the Police Abstract. In the appellant’s view it was significant that PW4 conceded that the matter was pending under investigations. The appellants also urged the Court to contrast the evidence of PW4 with the evidence the Base Commander, Kapsabet Police Station, Maureen Wewu (DW1) who testified on behalf of the appellant and stated that the accident occurred near a roadblock and that the motorcycle rider suddenly made a U-Turn on the road so as to avoid the roadblock.
[10] The appellants further argued that since neither PW4 nor DW1 was the investigating officer in the matter, their respective testimonies amounted to hearsay. They nevertheless urged the Court to believe the testimony of Maureen Wewu. They relied on several authorities to support their submissions, including Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, where the Court of Appeal quoted the following excerpt from the decision of Denning J . on the burden of proof in Miller v Minister of Pensions (1947) 2 ALL ER 372 :
“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 the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[11] On whether the learned magistrate erred in awarding the respondent Kshs. 200,000/= as damages, the appellants submitted that from the testimonies of the doctors, it was evident that the respondent sustained soft tissue injuries from which he had fully recovered. In their view, an award of Kshs. 80,000/= would be sufficient. They based that proposal on several authorities including the following:
[a] Guardian Coach Limited v Agani [2026] KEHC 2825 (KLR) in which an award of Kshs. 300,000/= for soft tissue injuries was set aside and substituted with Kshs. 60,000/=.
[b] Wilson Mboga Ondicho v Harrison Nyangau Mosigisi , Civil Appeal No. E054 of 2023 (26 th April 2025) an award of Kshs. 300,000/= was set aside and substituted with Kshs. 80,000/= for soft tissue injuries.
[c] Boaz Obure and another v Samwel Kiyuka & another , Civil Appeal No. E088 of 2023) (5 th November 2024) where an award of Kshs. 250,000/= for soft tissue injuries was set aside on appeal and substituted with Kshs. 70,000/=.
[12] Accordingly, the appellants prayed their appeal be allowed with costs.
[13] Through the firm of M/s Mwinamo Lugonzo & Company Advocates, the respondent filed written submissions dated 19 th March 2026. He addressed the Court on its role as the first appellate court and proposed the following issues for determination:
[a] Whether the decision of the lower court on liability was well-founded;
[b] Whether the award under the head of general damages was deserved.
[14] According to the respondent, there was sufficient evidence to support the conclusion reached by the trial magistrate both on liability and quantum of damages. On liability, he submitted that it was not in dispute that the alleged accident occurred. He reiterated his evidence that he was lawfully riding as a pillion passenger on Motorcycle Registration KMDU 370D headed to Kapsabet from the Chavakali direction and added that they had already crossed the road from the left side to the right side of the road, facing Kapsabet direction from Chavakali when Motor Vehicle Registration KCT 493 G overtook another vehicle and swerved to the right to avoid an impact with an oncoming vehicle and as result knocked down the Motorcycle Registration KMDU 370 D.
[15] The respondent urged the Court to find corroboration of his testimony in the evidence of PW4 and conclude that the trial court therefore properly found the appellants 100% liable. In his submission, the Police Abstract produced by PW4 was prima facie proof that the driver of Motor Vehicle KCT 493 G was to blame for the accident.
[16] On quantum of damages, the respondent cited various persuasive authorities in support his assertion that the assessment by the lower court is defensible.
[17] This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In Selle and another v Associated Motor Board Company and Others [1968] EA 123, it was held:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
[18] Accordingly, I have given consideration to the evidence adduced before the lower court. The respondent testified on 26 th October 2021 as PW5 and adopted his witness statement dated 15 th March 2019 in which he stated that he boarded Motor Cycle Registration No. KMDV 370D at Chepsanai junction. His intended destination was Chepsanai Market; and that as they were about to take off, Motor Vehicle Registration No. KCT 493G, Toyota Matatu headed towards Kapsabet from Chavakali direction lost control, veered off its lane and hit the motorcycle from behind on the Chepsanai rough road.
[19] It was further the evidence of the respondent that he lost consciousness and found himself at Kapsabet County Referral Hospital with injuries on his head, chest, pelvis and right lower limb. He blamed the driver of Motor Vehicle Registration No. KCT 493G for the accident and prayed for compensation for his injuries.
[20] PW1 before the lower court was Dr. Paul Kipkorir Rono , a registered medical practitioner then attached to Moi Teaching and Referral Hospital. He testified that the respondent was seen at their facility on 6 th May 2019 upon being referred from Kapsabet County Hospital. He confirmed that the patient had been treated at Kapsabet County Hospital for injury on the head with loss of consciousness cut wound, chest and pelvis injuries. He was referred to Moi Teaching and Referral Hospital for head CT scan and was attended to as an outpatient.
[21] PW2, Tom Kilel , testified that he previously worked at Kapsabet Hospital as a clinical officer and that the author of the letter dated 3 rd May 2019 by which the respondent was referred to Moi Teaching and Referral Hospital, was prepared by his colleague, Silas Kuto , an orthopaedic clinical officer. He also pointed out that he attended to the respondent before being transferred to Nandi Hills Hospital. He consequently identified and produced the respondent’s initial treatment notes made at Kapsabet County Hospital.
[22] The respondent also called Dr. Joseph Sokobe (PW3). He examined the respondent and prepared a medical report dated 14 th May 2019 for which he charged Kshs. 6,000/=. He mentioned that the patient presented a history of having been injured in a road traffic accident; and that he was initially treated at Kapsabet County Hospital before being referred to Moi Teaching and Referral Hospital for further attention. He produced the medical report and his receipt for Kshs. 6,000/= as the Plaintiff’s Exhibit 5(a) and (b) before the lower court.
[23] PC Chesorek Kiptoo also testified on behalf of the respondent as PW4. His evidence was that, on the 3 rd May 2019 at 09:38 hours, a road traffic accident occurred along Kapsabet-Chavakali road involving Motor Vehicle Registration No. KCT 495G Toyota Matatu and Motorcycle Registration No. KMDU 370D, Make TVS Star. PW4 further stated that the motor vehicle and the motorcycle were heading towards the same direction and that the motorcycle was ahead and was therefore hit from behind. PW4 further confirmed that both the rider of the motor cycle and the pillion passenger sustained injuries. He produced the OB report and the Police Abstract as exhibits before the lower court.
[24] PW4 further testified that from their investigations, the driver of Motor Vehicle Registration No. KCT 495G Toyota Matatu was to blame for the accident and that a charge sheet was prepared to that effect, but did not know whether the driver was charged. He conceded in cross-examination that he was not the investigating officer in the matter.
[25] The appellants called the records officer at Kapsabet County Hospital, Elisha Kemboi as DW1. He identified the treatment notes given to the respondent dated 3 rd May 2019 and noted that the name of the patient did not appear in their outpatient records. DW1 further stated that the author of the treatment notes was unknown. He consequently wrote the letter to Directline Insurance dated 23 rd October 2019 which he produced as Defence Exhibit 1.
[26] In the light of the foregoing summary of the evidence presented before the lower court and the submissions made herein by learned counsel for the parties, the issues for determination are:
[a] Whether the learned magistrate erred in holding the appellants 100% liable for the subject road traffic accident.
[b] Whether the trial magistrate erred in awarding the respondent Kshs. 200,000/= as general damages for the injuries suffered.
A. On Liability:
[27] It is settled law that the burden of proof lies upon the party who alleges. Section 107(1) of the Evidence Act, Cap 80, is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[28] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[29] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden 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 the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[30] Consequently, having alleged negligence at paragraph 4 of his Plaint, it was for the respondent to prove those allegations on a balance of probabilities. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[31] The respondent testified as to how the accident occurred. He was riding aboard the motor cycle as a pillion passenger and his evidence is that they were wrongfully knocked by the Matatu from behind. PC Chesorek Kiptoo (PW4) adduced evidence to a similar effect, namely, that the accident occurred at 09:38 hours on 3 rd May 2019 involving Motor Vehicle Registration No. KCT 493G and Motor Cycle Registration No. KMPU 370D. It was the evidence of PW4 that the motor cycle was ahead of the matatu and that the matatu driver was to blame for the accident.
[32] Although in the appellant’s written submissions reference was made to the evidence of one Maureen Wewu as DW1, no such witness was called before the lower court. The only witness who testified on behalf of the appellants as DW1 was Elisha Kemboi of Kapsabet County Referral Hospital. Clearly, they utterly failed to either their allegations of contributory negligence or fraud.
[33] In the premises, the respondent’s evidence in proof of the allegations of negligence was entirely uncontroverted. Indeed, in Mwangi & another v Oginga (Civil Appeal 88 of 2023) [2025] KEHC 7976 (KLR) (13 February 2025) (Judgment) the court held as follows:
As a corollary, pillion passengers, who merely boarded the motorcycle, are to be viewed as innocent parties unless specific evidence shows they contributed to the cause of the accident. (emphasis added)
[34] I therefore find no basis for faulting the decision of the lower court on liability, granted the evidence adduced by the parties. The same is hereby upheld.
B. On Quantum of Damages:
[35] It is trite that an appellate court will only interfere with an award of damages if it is shown that the trial court applied wrong principles or arrived at an inordinately high or low award. (See Kenya Oil Company Limited & another v Kenya Pipeline Company [2014] KECA 851 (KLR) para 43, see also Bashir Ahmed Butt v Uwais Ahmed Khan [1982–88] KAR 5). Moreover, assessment of damages is at the discretion of the trial court . In Catholic Diocese of Kisumu vs. Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , the Court of Appeal held that:
“ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
[36] In Taveta v Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR) (5 February 2014) (Judgment) the court of appeal held that:
“…the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past .”
[37] A perusal of the medical reports presented before the lower court reveals that the respondent was treated at Kapsabet District Hospital for injuries on the head with loss of consciousness, cut wound, chest and pelvis injuries and was referred to Moi Teaching and Referral Hospital for Head CT scan. In Dr. Sokobe’s opinion, the respondent sustained soft tissue injuries from which he was recovering well as at 14 th May 2019 when he prepared his report.
[38] I therefore find no reason to disturb the lower courts award . It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[39] In the result, I find no merit in the appeal. The same is hereby dismissed in its entirety with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026.
[2] The respondent had alleged that on the 3 rd May 2019, he was travelling as a lawful pillion passenger aboard Motor Cycle Registration KMDU 370D along Kapsabet-Chavakali road when at Chepsonoi area, the appellants agent, driver, employee and/or servant while driving Motor Vehicle Registration No. KCT 493G TOYOTA HIACE drove so negligently and/or carelessly and without any regard to other road users and pedestrians that he failed to take control of the said Motor Vehicle and caused it to veer off its lane and rammed into Motor Cycle Registration KMDU 370D thereby knocking him. He further averred that he sustained serious injuries in the said accident, the particulars whereof were given at paragraph nine (9) of the Plaint.
[3] Accordingly, the respondent prayed for the following reliefs from the lower court:
[a] Special damages as prayed above
[b] General damages for pain suffering and loss of amenities
[c] Costs of the suit together with interest at court rates
[d] Any other relief deemed fit by the court
[4] The appellants denied the respondent’s allegations vide their Defence dated 20 th September 2019 as amended on 22 nd January 2021. They denied not only the occurrence of the alleged accident but also that the respondent was injured as alleged by him. They averred that the claim was fraudulent; and contended that, if indeed an accident occurred as alleged then same was caused by the negligence on the part of the respondent and the owner of the subject motor cycle. Accordingly, the appellants prayed for the dismissal of the suit.
[5] Upon hearing the parties, the lower court found the appellants 100% liable for the accident. The court then proceeded to assess general damages payable at Kshs. 200,000/= together with special damages of Kshs. 13,350/=. It therefore entered judgment in the respondent’s favour in the total sum of Kshs. 213,350/= together with interest and costs.
[6] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 2 nd August 2024. The appellant raised a total of five (5) grounds of appeal against the judgment delivered on 5 th July 2024 as follows:
[a] THAT the learned magistrate erred in law and in fact by awarding 100% liability as against the appellant and by failing to take into account the evidence adduced by the appellants herein.
[b] THAT the learned magistrate erred in law and in fact by awarding Kshs. 200,000/= as general damages which award is inordinately high in view of the injuries sustained by the respondent.
[c] THAT the learned magistrate misdirected himself by failing to take into account the well-established principle requiring comparable awards to be made for comparable injuries sustained thereby falling into an error by awarding Kshs. 200,000/= which award is manifestly excessive.
[d] THAT the learned magistrate erred in law and in fact by awarding Kshs. 200,000/= as general damages which award is excessive in view of the injuries sustained by the respondent thereby deviating from the principle of stare decisis requiring that comparable awards be made for comparable injuries.
[e] THAT the learned magistrate erred in law and in fact by disregarding and failing to appreciate the judicial authorities on quantum cited by the appellant in their written submissions thereby making an award on general damages that is unreasonably high in the circumstances and connotes an erroneous estimate of the award on general damages in view of the injuries sustained by the respondent.
[7] In the premises, the appellants prayed that their appeal be allowed, the judgment delivered on the 5 th day of July, 2024 in Kapsabet CMCC No. 105 of 2019 by Hon. Samuel M. Mokua (CM) on the issue of quantum be set aside and an order re-assessing the award on quantum downwards be made. They also prayed for costs of the appeal.
[8] On the 3 rd March 2026, the court issued directions that the appeal be canvassed by way of written submissions. Hence, through the firm of KRK Advocates LLP, the appellants filed written submissions dated 4 th May 2026 in which they proposed two issues for determination, namely:
[a] Whether, basing on the evidence tendered before the trial court, they were the cause of the accident of 3 rd May, 2019 so as to be held 100% liable for the occurrence.
[b] Whether the trial magistrate erred in awarding Kshs. 200,000/= as damages for the injuries suffered.
[9] In the submission of the appellants the assertions by the respondent that the said motor vehicle was being driven negligently remained mere allegations as there was no evidence tendered in proof thereof. The appellants highlighted the evidence of the Police officer, PC Kiptoo (PW4) who testified on behalf of the respondent and produced the Police Abstract. In the appellant’s view it was significant that PW4 conceded that the matter was pending under investigations. The appellants also urged the Court to contrast the evidence of PW4 with the evidence the Base Commander, Kapsabet Police Station, Maureen Wewu (DW1) who testified on behalf of the appellant and stated that the accident occurred near a roadblock and that the motorcycle rider suddenly made a U-Turn on the road so as to avoid the roadblock.
[10] The appellants further argued that since neither PW4 nor DW1 was the investigating officer in the matter, their respective testimonies amounted to hearsay. They nevertheless urged the Court to believe the testimony of Maureen Wewu. They relied on several authorities to support their submissions, including Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, where the Court of Appeal quoted the following excerpt from the decision of Denning J . on the burden of proof in Miller v Minister of Pensions (1947) 2 ALL ER 372 :
“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 the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[11] On whether the learned magistrate erred in awarding the respondent Kshs. 200,000/= as damages, the appellants submitted that from the testimonies of the doctors, it was evident that the respondent sustained soft tissue injuries from which he had fully recovered. In their view, an award of Kshs. 80,000/= would be sufficient. They based that proposal on several authorities including the following:
[a] Guardian Coach Limited v Agani [2026] KEHC 2825 (KLR) in which an award of Kshs. 300,000/= for soft tissue injuries was set aside and substituted with Kshs. 60,000/=.
[b] Wilson Mboga Ondicho v Harrison Nyangau Mosigisi , Civil Appeal No. E054 of 2023 (26 th April 2025) an award of Kshs. 300,000/= was set aside and substituted with Kshs. 80,000/= for soft tissue injuries.
[c] Boaz Obure and another v Samwel Kiyuka & another , Civil Appeal No. E088 of 2023) (5 th November 2024) where an award of Kshs. 250,000/= for soft tissue injuries was set aside on appeal and substituted with Kshs. 70,000/=.
[12] Accordingly, the appellants prayed their appeal be allowed with costs.
[13] Through the firm of M/s Mwinamo Lugonzo & Company Advocates, the respondent filed written submissions dated 19 th March 2026. He addressed the Court on its role as the first appellate court and proposed the following issues for determination:
[a] Whether the decision of the lower court on liability was well-founded;
[b] Whether the award under the head of general damages was deserved.
[14] According to the respondent, there was sufficient evidence to support the conclusion reached by the trial magistrate both on liability and quantum of damages. On liability, he submitted that it was not in dispute that the alleged accident occurred. He reiterated his evidence that he was lawfully riding as a pillion passenger on Motorcycle Registration KMDU 370D headed to Kapsabet from the Chavakali direction and added that they had already crossed the road from the left side to the right side of the road, facing Kapsabet direction from Chavakali when Motor Vehicle Registration KCT 493 G overtook another vehicle and swerved to the right to avoid an impact with an oncoming vehicle and as result knocked down the Motorcycle Registration KMDU 370 D.
[15] The respondent urged the Court to find corroboration of his testimony in the evidence of PW4 and conclude that the trial court therefore properly found the appellants 100% liable. In his submission, the Police Abstract produced by PW4 was prima facie proof that the driver of Motor Vehicle KCT 493 G was to blame for the accident.
[16] On quantum of damages, the respondent cited various persuasive authorities in support his assertion that the assessment by the lower court is defensible.
[17] This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In Selle and another v Associated Motor Board Company and Others [1968] EA 123, it was held:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
[18] Accordingly, I have given consideration to the evidence adduced before the lower court. The respondent testified on 26 th October 2021 as PW5 and adopted his witness statement dated 15 th March 2019 in which he stated that he boarded Motor Cycle Registration No. KMDV 370D at Chepsanai junction. His intended destination was Chepsanai Market; and that as they were about to take off, Motor Vehicle Registration No. KCT 493G, Toyota Matatu headed towards Kapsabet from Chavakali direction lost control, veered off its lane and hit the motorcycle from behind on the Chepsanai rough road.
[19] It was further the evidence of the respondent that he lost consciousness and found himself at Kapsabet County Referral Hospital with injuries on his head, chest, pelvis and right lower limb. He blamed the driver of Motor Vehicle Registration No. KCT 493G for the accident and prayed for compensation for his injuries.
[20] PW1 before the lower court was Dr. Paul Kipkorir Rono , a registered medical practitioner then attached to Moi Teaching and Referral Hospital. He testified that the respondent was seen at their facility on 6 th May 2019 upon being referred from Kapsabet County Hospital. He confirmed that the patient had been treated at Kapsabet County Hospital for injury on the head with loss of consciousness cut wound, chest and pelvis injuries. He was referred to Moi Teaching and Referral Hospital for head CT scan and was attended to as an outpatient.
[21] PW2, Tom Kilel , testified that he previously worked at Kapsabet Hospital as a clinical officer and that the author of the letter dated 3 rd May 2019 by which the respondent was referred to Moi Teaching and Referral Hospital, was prepared by his colleague, Silas Kuto , an orthopaedic clinical officer. He also pointed out that he attended to the respondent before being transferred to Nandi Hills Hospital. He consequently identified and produced the respondent’s initial treatment notes made at Kapsabet County Hospital.
[22] The respondent also called Dr. Joseph Sokobe (PW3). He examined the respondent and prepared a medical report dated 14 th May 2019 for which he charged Kshs. 6,000/=. He mentioned that the patient presented a history of having been injured in a road traffic accident; and that he was initially treated at Kapsabet County Hospital before being referred to Moi Teaching and Referral Hospital for further attention. He produced the medical report and his receipt for Kshs. 6,000/= as the Plaintiff’s Exhibit 5(a) and (b) before the lower court.
[23] PC Chesorek Kiptoo also testified on behalf of the respondent as PW4. His evidence was that, on the 3 rd May 2019 at 09:38 hours, a road traffic accident occurred along Kapsabet-Chavakali road involving Motor Vehicle Registration No. KCT 495G Toyota Matatu and Motorcycle Registration No. KMDU 370D, Make TVS Star. PW4 further stated that the motor vehicle and the motorcycle were heading towards the same direction and that the motorcycle was ahead and was therefore hit from behind. PW4 further confirmed that both the rider of the motor cycle and the pillion passenger sustained injuries. He produced the OB report and the Police Abstract as exhibits before the lower court.
[24] PW4 further testified that from their investigations, the driver of Motor Vehicle Registration No. KCT 495G Toyota Matatu was to blame for the accident and that a charge sheet was prepared to that effect, but did not know whether the driver was charged. He conceded in cross-examination that he was not the investigating officer in the matter.
[25] The appellants called the records officer at Kapsabet County Hospital, Elisha Kemboi as DW1. He identified the treatment notes given to the respondent dated 3 rd May 2019 and noted that the name of the patient did not appear in their outpatient records. DW1 further stated that the author of the treatment notes was unknown. He consequently wrote the letter to Directline Insurance dated 23 rd October 2019 which he produced as Defence Exhibit 1.
[26] In the light of the foregoing summary of the evidence presented before the lower court and the submissions made herein by learned counsel for the parties, the issues for determination are:
[a] Whether the learned magistrate erred in holding the appellants 100% liable for the subject road traffic accident.
[b] Whether the trial magistrate erred in awarding the respondent Kshs. 200,000/= as general damages for the injuries suffered.
A. On Liability:
[27] It is settled law that the burden of proof lies upon the party who alleges. Section 107(1) of the Evidence Act, Cap 80, is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[28] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[29] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden 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 the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[30] Consequently, having alleged negligence at paragraph 4 of his Plaint, it was for the respondent to prove those allegations on a balance of probabilities. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[31] The respondent testified as to how the accident occurred. He was riding aboard the motor cycle as a pillion passenger and his evidence is that they were wrongfully knocked by the Matatu from behind. PC Chesorek Kiptoo (PW4) adduced evidence to a similar effect, namely, that the accident occurred at 09:38 hours on 3 rd May 2019 involving Motor Vehicle Registration No. KCT 493G and Motor Cycle Registration No. KMPU 370D. It was the evidence of PW4 that the motor cycle was ahead of the matatu and that the matatu driver was to blame for the accident.
[32] Although in the appellant’s written submissions reference was made to the evidence of one Maureen Wewu as DW1, no such witness was called before the lower court. The only witness who testified on behalf of the appellants as DW1 was Elisha Kemboi of Kapsabet County Referral Hospital. Clearly, they utterly failed to either their allegations of contributory negligence or fraud.
[33] In the premises, the respondent’s evidence in proof of the allegations of negligence was entirely uncontroverted. Indeed, in Mwangi & another v Oginga (Civil Appeal 88 of 2023) [2025] KEHC 7976 (KLR) (13 February 2025) (Judgment) the court held as follows:
As a corollary, pillion passengers, who merely boarded the motorcycle, are to be viewed as innocent parties unless specific evidence shows they contributed to the cause of the accident. (emphasis added)
[34] I therefore find no basis for faulting the decision of the lower court on liability, granted the evidence adduced by the parties. The same is hereby upheld.
B. On Quantum of Damages:
[35] It is trite that an appellate court will only interfere with an award of damages if it is shown that the trial court applied wrong principles or arrived at an inordinately high or low award. (See Kenya Oil Company Limited & another v Kenya Pipeline Company [2014] KECA 851 (KLR) para 43, see also Bashir Ahmed Butt v Uwais Ahmed Khan [1982–88] KAR 5). Moreover, assessment of damages is at the discretion of the trial court . In Catholic Diocese of Kisumu vs. Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , the Court of Appeal held that:
“ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
[36] In Taveta v Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR) (5 February 2014) (Judgment) the court of appeal held that:
“…the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past .”
[37] A perusal of the medical reports presented before the lower court reveals that the respondent was treated at Kapsabet District Hospital for injuries on the head with loss of consciousness, cut wound, chest and pelvis injuries and was referred to Moi Teaching and Referral Hospital for Head CT scan. In Dr. Sokobe’s opinion, the respondent sustained soft tissue injuries from which he was recovering well as at 14 th May 2019 when he prepared his report.
[38] I therefore find no reason to disturb the lower courts award . It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[39] In the result, I find no merit in the appeal. The same is hereby dismissed in its entirety with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026.