REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
[1] The appellants herein, Classic Savings and Credit Co-operative Society Limited and Gede Enterprises, were sued before the lower court by the respondent, Geoffrey Kibet Koech , in Kapsabet Chief Magistrate’s Civil Case No. E104 of 2019 . The respondent thereby claimed for compensation by way of general and special 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 lawfully riding 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 veered off its lane and rammed into Motor Cycle Registration KMDU 370D, thereby knocking down the respondent. He further averred that he sustained serious injuries in the said accident, the particulars whereof were given at paragraph nine (9) of the Plaint. The respondent also supplied particulars of negligence at paragraph 7 of his Plaint dated 10 th July 2019.
[3] Accordingly, the respondent prayed for the following reliefs from the lower court:
[a] Special damages in the sum of Kshs. 15,545/=;
[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. 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. 290,000/= together with special damages of Kshs. 15,545/=. It therefore entered judgment in the respondent’s favour in the total sum of Kshs. 305,545/= 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. 290,000/= 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.
[d] THAT the learned magistrate erred in law and in fact by awarding Kshs. 290,000/= as general damages which award is excessive in view of the injuries sustained by the respondent thereby deviating from the principle of stare decisis .
[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 appellants in their written submissions thereby making an award on general damages that is unreasonably high in the circumstances and connotes an erroneous estimate.
[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. 104 of 2019 by Hon. Samuel M. Mokua (CM) on the issues of liability and quantum be set aside and substituted by the judgment of this Court. 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. 290,000/= as general damages for the injuries suffered by the respondent.
[9] In the submission of the appellants the assertions by the respondent that the subject 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) attached to Kapsabet Police Station 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 PW4 was not the investigating officer in the matter, his testimony was nothing but hearsay. 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 Kshs. 290,000/= to the respondent as general damages, the appellants urged the Court to find that, since the medical reports show that he sustained soft tissue injuries from which he had fully recovered, 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 a single issue for determination, namely, whether there was sufficient evidence to support the conclusion reached by the lower court on liability and quantum.
[14] On liability, the respondent urged the Court to find 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, in view of the corroborating evidence adduced by PW4 that the trial court 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, the point was made as follows:
“.. 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 PW3 and adopted his witness statement dated 15 th March 2019 in which he stated that he was riding Motor Cycle Registration No. KMDV 370D and had just stopped at Chepsonoi junction along the Kapsabet-Chavakali road. He explained that he was carrying a pillion passenger and was headed to Chepsonoi Market using a feeder rough road; 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 Chepsonoi rough road.
[19] It was further the evidence of the respondent that he sustained injuries on the head, neck, chest and right leg as well as his mouth with the result that some of his teeth were loosened. He blamed the driver of Motor Vehicle Registration No. KCT 493G for the accident and prayed for compensation for his injuries.
[20] Dr. Joseph Sokobe testified before the lower court as PW1. His evidence was that he examined the respondent on 14 th May 2019 in respect of injuries sustained by him in a road traffic accident. He prepared a medical report dated 15 th May 2019 for which he charged Kshs. 6000/=. He mentioned that the respondent had suffered soft tissue injuries and had been treated as an outpatient at Kapsabet County Hospital and thereafter at Moi Teaching and Referral Hospital for his injured teeth. He produced the medical report and his receipt for Kshs. 6,000/= as the Plaintiff’s Exhibit 1(a) and (b) before the lower court. PW1 also produced a P3 Form he filled and signed in respect of the respondent as the Plaintiff’s Exhibit 2.
[21] The respondent also called Dr. Paul Kipkorir Rono, a registered medical practitioner then attached to Moi Teaching and Referral Hospital. PW2 testified that the respondent was seen at their facility on 3 rd 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 face with loosening of the upper teeth. PW2 stated that an x-ray of the respondent’s face was done and it revealed loosening of teeth and fracture. He was referred to Moi Teaching and Referral Hospital for head CT scan and was attended to as an outpatient.
[22] Inspector Maureen Weru , the Base Commander at Kapsabet Traffic Base also testified before the lower court. Although the typed proceedings of the lower court show that she was PW3, a perusal of the original record reveals that she was called as a defence witness. She confirmed that a road traffic accident was reported at their station vide OB No. 4/3/5/2019; and that the accident was reported to have occurred at Kaimosi area, near Kaimosi Police Station where there was a police road block.
[23] It was the evidence of IP Weru that the accident involved Motor Vehicle Registration No. KCT 495G Toyota Matatu and Motorcycle Registration No. KMDU 370D. PW4 further stated that, shortly before the accident, the motorcycle made a U turn to avoid the road block and was in the process knocked from behind by the Matatu. She also mentioned that the motor cyclist was carrying a pillion passenger, and that both of them were injured in the accident. She concluded her evidence by stating that, from their records the motorcyclist was to blame for the accident.
[24] The record of the lower court shows that the parties agreed to adopt the evidence of PC Chesorek Kiptoo (PW4) adduced in a similar matter, namely, Kapsabet CMCC No. 105 of 2019. He testified 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. In the evidence of PW4, the motor cycle was ahead of the matatu and that the matatu driver was to blame for the accident.
[25] The proceedings of the lower court also show that the Medical Report prepared by Dr. Kahutho was produced by consent on behalf of the defence as Defence Exhibit 2. The lower court then gave directions for the filing of written submissions before delivering the impugned judgment.
[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 court erred in its determination on liability;
[b] Whether the lower court’s award on general damages was inordinately high taking into account the injuries suffered.
A. On Liability:
[27] Having alleged negligence at paragraph 4 of his Plaint, it was for the respondent to prove those allegations on a balance of probabilities. This was aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR as follows:
“…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…”
[28] 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 .
[29] 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…”
[30] 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.”
[31] The appellants do not dispute that an accident occurred involving parties before court. They called IP Maureen Weru as their witness and she confirmed that a road traffic accident did occur involving the respondent and the same was reported at Kaimosi Police Station vide OB No. 4/3/5/2019. What the appellants disputed were the respondent’s allegations of negligence. To counter the respondent’s allegations, the appellants pleaded contributory negligence as well as fraud. It is noteworthy however that they utterly failed to prove either. DW1 conceded that she was not the investigating officer and that she never visited the scene. Thus, the learned magistrate was faced with the disparate positions taken by the two police officers, the lower court cannot be faulted for believing PW4.
[32] In Peters v Sunday Post Limited [1958] EA 424 it was pointed out that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion …”
[33] In the premises, it is my finding that the lower court correctly found the driver of Motor Vehicle Registration No. KCT 495G Toyota Matatu and by extension the respondents 100% liable for the accident.
B. On Quantum of Damages:
[34] 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.”
[35] Similarly, 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 .”
[36] In his Plaint dated 10 th July 2019, the respondent pleaded the following injuries:
[a] Bruises on the head
[b] Blunt injury to the neck
[c] Blunt injury to the chest
[d] Blunt injury to the right leg with bruises, and
[e] Blunt injury to the mouth with loosening of the teeth
[37] In proof of the pleaded injuries, the plaintiff testified and called Dr. Sokobe (PW1) and Dr. Rono (PW2). In his Medical Report dated 14 th May 2019, PW2 confirmed that he examined the respondent in respect of injuries sustained by him in a road traffic accident and formed the opinion that he had sustained soft tissue injuries from which he was in the process of recovering from. He pointed out that he relied not only on the history provided by the respondent, but also on physical examination of the respondent and the treatment notes from Moi Teaching & Referral Hospital and Kapsabet County Referral Hospital.
[38] Dr. Paul Kipkorir Rono confirmed that the respondent was seen at Moi Teaching & Referral Hospital on 3 rd May 2019 upon being referred from Kapsabet County Hospital. He also confirmed that the patient had been treated at Kapsabet County Hospital for injury on the face with loosening of the upper teeth. PW2 stated that an x-ray of the respondent’s face was done and it revealed loosening of teeth and fracture. He was referred to Moi Teaching and Referral Hospital for head CT scan and was attended to as an outpatient.
[39] Dr. Kahuthus’s Medical Report also confirms that the respondent was indeed injured in the subject road accident and suffered soft tissue injuries.
[40] I have considered the authorities relied on by the parties and while I find the awards referred to by the appellants to be on the lower side, the respondent relied on decisions that appear to be higher than what was awarded by the lower court. I have instead opted to rely on the following authorities:
[a] Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR) (5 July 2023) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries, including deep cut on the forehead and blunt injury to the right knee, was considered inordinately high. Consequently, the award was reduced to Kshs. 150,000/=.
[b] Ogola v Ogangira & another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR) (22 January 2026) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries was, on appeal, reduced to Kshs. 150,000/=.
[41] It bears repeating 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."
[42] Guided by comparable awards and inflationary trends, I find that the award of Kshs. 290,000/= for general damages is on the higher side. The same is hereby reduced to Kshs. 200,000/=, taking into account the fact that the respondent suffered loosening of his front upper teeth. The special damages of Kshs. 13, 350/- awarded by the trial court are not in dispute.
[43] In the result, the appeal is hereby allowed on quantum and orders made as hereunder:
[a] the judgment of the lower court is hereby set aside and substituted with an award of Kshs. 200,000/= for general damages.
[b] The special damages of Kshs. 13,350 remains undisturbed together with interest and costs.
[c] Each party to bear own costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026.
IN THE HIGH COURT OF KENYA
[1] The appellants herein, Classic Savings and Credit Co-operative Society Limited and Gede Enterprises, were sued before the lower court by the respondent, Geoffrey Kibet Koech , in Kapsabet Chief Magistrate’s Civil Case No. E104 of 2019 . The respondent thereby claimed for compensation by way of general and special 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 lawfully riding 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 veered off its lane and rammed into Motor Cycle Registration KMDU 370D, thereby knocking down the respondent. He further averred that he sustained serious injuries in the said accident, the particulars whereof were given at paragraph nine (9) of the Plaint. The respondent also supplied particulars of negligence at paragraph 7 of his Plaint dated 10 th July 2019.
[3] Accordingly, the respondent prayed for the following reliefs from the lower court:
[a] Special damages in the sum of Kshs. 15,545/=;
[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. 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. 290,000/= together with special damages of Kshs. 15,545/=. It therefore entered judgment in the respondent’s favour in the total sum of Kshs. 305,545/= 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. 290,000/= 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.
[d] THAT the learned magistrate erred in law and in fact by awarding Kshs. 290,000/= as general damages which award is excessive in view of the injuries sustained by the respondent thereby deviating from the principle of stare decisis .
[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 appellants in their written submissions thereby making an award on general damages that is unreasonably high in the circumstances and connotes an erroneous estimate.
[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. 104 of 2019 by Hon. Samuel M. Mokua (CM) on the issues of liability and quantum be set aside and substituted by the judgment of this Court. 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. 290,000/= as general damages for the injuries suffered by the respondent.
[9] In the submission of the appellants the assertions by the respondent that the subject 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) attached to Kapsabet Police Station 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 PW4 was not the investigating officer in the matter, his testimony was nothing but hearsay. 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 Kshs. 290,000/= to the respondent as general damages, the appellants urged the Court to find that, since the medical reports show that he sustained soft tissue injuries from which he had fully recovered, 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 a single issue for determination, namely, whether there was sufficient evidence to support the conclusion reached by the lower court on liability and quantum.
[14] On liability, the respondent urged the Court to find 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, in view of the corroborating evidence adduced by PW4 that the trial court 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, the point was made as follows:
“.. 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 PW3 and adopted his witness statement dated 15 th March 2019 in which he stated that he was riding Motor Cycle Registration No. KMDV 370D and had just stopped at Chepsonoi junction along the Kapsabet-Chavakali road. He explained that he was carrying a pillion passenger and was headed to Chepsonoi Market using a feeder rough road; 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 Chepsonoi rough road.
[19] It was further the evidence of the respondent that he sustained injuries on the head, neck, chest and right leg as well as his mouth with the result that some of his teeth were loosened. He blamed the driver of Motor Vehicle Registration No. KCT 493G for the accident and prayed for compensation for his injuries.
[20] Dr. Joseph Sokobe testified before the lower court as PW1. His evidence was that he examined the respondent on 14 th May 2019 in respect of injuries sustained by him in a road traffic accident. He prepared a medical report dated 15 th May 2019 for which he charged Kshs. 6000/=. He mentioned that the respondent had suffered soft tissue injuries and had been treated as an outpatient at Kapsabet County Hospital and thereafter at Moi Teaching and Referral Hospital for his injured teeth. He produced the medical report and his receipt for Kshs. 6,000/= as the Plaintiff’s Exhibit 1(a) and (b) before the lower court. PW1 also produced a P3 Form he filled and signed in respect of the respondent as the Plaintiff’s Exhibit 2.
[21] The respondent also called Dr. Paul Kipkorir Rono, a registered medical practitioner then attached to Moi Teaching and Referral Hospital. PW2 testified that the respondent was seen at their facility on 3 rd 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 face with loosening of the upper teeth. PW2 stated that an x-ray of the respondent’s face was done and it revealed loosening of teeth and fracture. He was referred to Moi Teaching and Referral Hospital for head CT scan and was attended to as an outpatient.
[22] Inspector Maureen Weru , the Base Commander at Kapsabet Traffic Base also testified before the lower court. Although the typed proceedings of the lower court show that she was PW3, a perusal of the original record reveals that she was called as a defence witness. She confirmed that a road traffic accident was reported at their station vide OB No. 4/3/5/2019; and that the accident was reported to have occurred at Kaimosi area, near Kaimosi Police Station where there was a police road block.
[23] It was the evidence of IP Weru that the accident involved Motor Vehicle Registration No. KCT 495G Toyota Matatu and Motorcycle Registration No. KMDU 370D. PW4 further stated that, shortly before the accident, the motorcycle made a U turn to avoid the road block and was in the process knocked from behind by the Matatu. She also mentioned that the motor cyclist was carrying a pillion passenger, and that both of them were injured in the accident. She concluded her evidence by stating that, from their records the motorcyclist was to blame for the accident.
[24] The record of the lower court shows that the parties agreed to adopt the evidence of PC Chesorek Kiptoo (PW4) adduced in a similar matter, namely, Kapsabet CMCC No. 105 of 2019. He testified 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. In the evidence of PW4, the motor cycle was ahead of the matatu and that the matatu driver was to blame for the accident.
[25] The proceedings of the lower court also show that the Medical Report prepared by Dr. Kahutho was produced by consent on behalf of the defence as Defence Exhibit 2. The lower court then gave directions for the filing of written submissions before delivering the impugned judgment.
[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 court erred in its determination on liability;
[b] Whether the lower court’s award on general damages was inordinately high taking into account the injuries suffered.
A. On Liability:
[27] Having alleged negligence at paragraph 4 of his Plaint, it was for the respondent to prove those allegations on a balance of probabilities. This was aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR as follows:
“…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…”
[28] 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 .
[29] 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…”
[30] 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.”
[31] The appellants do not dispute that an accident occurred involving parties before court. They called IP Maureen Weru as their witness and she confirmed that a road traffic accident did occur involving the respondent and the same was reported at Kaimosi Police Station vide OB No. 4/3/5/2019. What the appellants disputed were the respondent’s allegations of negligence. To counter the respondent’s allegations, the appellants pleaded contributory negligence as well as fraud. It is noteworthy however that they utterly failed to prove either. DW1 conceded that she was not the investigating officer and that she never visited the scene. Thus, the learned magistrate was faced with the disparate positions taken by the two police officers, the lower court cannot be faulted for believing PW4.
[32] In Peters v Sunday Post Limited [1958] EA 424 it was pointed out that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion …”
[33] In the premises, it is my finding that the lower court correctly found the driver of Motor Vehicle Registration No. KCT 495G Toyota Matatu and by extension the respondents 100% liable for the accident.
B. On Quantum of Damages:
[34] 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.”
[35] Similarly, 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 .”
[36] In his Plaint dated 10 th July 2019, the respondent pleaded the following injuries:
[a] Bruises on the head
[b] Blunt injury to the neck
[c] Blunt injury to the chest
[d] Blunt injury to the right leg with bruises, and
[e] Blunt injury to the mouth with loosening of the teeth
[37] In proof of the pleaded injuries, the plaintiff testified and called Dr. Sokobe (PW1) and Dr. Rono (PW2). In his Medical Report dated 14 th May 2019, PW2 confirmed that he examined the respondent in respect of injuries sustained by him in a road traffic accident and formed the opinion that he had sustained soft tissue injuries from which he was in the process of recovering from. He pointed out that he relied not only on the history provided by the respondent, but also on physical examination of the respondent and the treatment notes from Moi Teaching & Referral Hospital and Kapsabet County Referral Hospital.
[38] Dr. Paul Kipkorir Rono confirmed that the respondent was seen at Moi Teaching & Referral Hospital on 3 rd May 2019 upon being referred from Kapsabet County Hospital. He also confirmed that the patient had been treated at Kapsabet County Hospital for injury on the face with loosening of the upper teeth. PW2 stated that an x-ray of the respondent’s face was done and it revealed loosening of teeth and fracture. He was referred to Moi Teaching and Referral Hospital for head CT scan and was attended to as an outpatient.
[39] Dr. Kahuthus’s Medical Report also confirms that the respondent was indeed injured in the subject road accident and suffered soft tissue injuries.
[40] I have considered the authorities relied on by the parties and while I find the awards referred to by the appellants to be on the lower side, the respondent relied on decisions that appear to be higher than what was awarded by the lower court. I have instead opted to rely on the following authorities:
[a] Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR) (5 July 2023) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries, including deep cut on the forehead and blunt injury to the right knee, was considered inordinately high. Consequently, the award was reduced to Kshs. 150,000/=.
[b] Ogola v Ogangira & another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR) (22 January 2026) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries was, on appeal, reduced to Kshs. 150,000/=.
[41] It bears repeating 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."
[42] Guided by comparable awards and inflationary trends, I find that the award of Kshs. 290,000/= for general damages is on the higher side. The same is hereby reduced to Kshs. 200,000/=, taking into account the fact that the respondent suffered loosening of his front upper teeth. The special damages of Kshs. 13, 350/- awarded by the trial court are not in dispute.
[43] In the result, the appeal is hereby allowed on quantum and orders made as hereunder:
[a] the judgment of the lower court is hereby set aside and substituted with an award of Kshs. 200,000/= for general damages.
[b] The special damages of Kshs. 13,350 remains undisturbed together with interest and costs.
[c] Each party to bear own costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026.