REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E034 OF 2023
DORCAS WANJIRU CHEGE………………………………1ST APPELLANT
ANTONY KING’ORI………………………………….…..2ND APPELLANT
VERSUS
MICAH WABWILE WANYONYI……………………………RESPONDENT
(Being as appeal from the judgement of Hon. Tom M. Olando-PM, delivered on 23rd March 2023, in Chief Magistrate’s Court at Bungoma CMCC No. 188 of 2021)
JUDGEMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on liability and quantum. The Appellants seek that the appeal be allowed and judgment on quantum of the lower court be review downwards, the costs of the appeal and of the Court below, as well as such further or other orders the Honourable Court may find fit to issue.
2. By a plaint dated 26th March 2026, at Bungoma Chief Magistrate’s Court No. 188 of 2021, the Respondent sued the Appellants herein for general damages, special damages, costs of the suit, and interest for bodily injuries sustained out of a road accident that occurred on or about 25th August 2020, along Bungoma-Malaba road.
3. The Respondent claimed that he was riding motorcycle registration number KMEW 470M along Bungoma-Malaba road when at Machwele area, motor vehicle Registration Number KAR 681E, which was driven recklessly and lost control and hit him causing him to sustain serious injuries.
4. The Appellants in their response denied the particulars of negligence attributed to them and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent.
5. During the hearing, the Respondent called three witnesses, while the Appellant called one witness.
6. After hearing and an in-depth analysis of the evidence before Court, the trial Court found both parties equally liable for the said accident. The trial Court proceeded to award the following: -
I. General damages for pain and suffering Kshs. 300, 000/=
II. Special damages Kshs 9,132/=
Total Kshs 309,132/=
Plus, costs and interest
7. The Appellants are dissatisfied with the trial magistrate’s finding on liability and quantum. The memorandum of appeal dated 19th April 2023 raises the following grounds:
a. That the Honourable learned trial Magistrate erred in law in entering judgement in favour of the Respondent whereas the same failed to prove his claim to the required standard.
b. That the Honourable learned trial Magistrate erred in law and in fact in the assessment of damages payable and apportionment of liability.
c. That the Honourable learned trial Magistrate misdirected herself by failing to consider and apply some weight on the submissions by the Appellants while arriving at the judgement.
d. That the Honourable learned trial Magistrate erred in awarding excessive quantum of damages and an erroneous estimate of the damages to the Respondent without due regard to the weight of precedents in similar circumstances.
e. That the Honourable learned trial Magistrate erred in law and facts in relying on extraneous evidence in arriving at the decision on quantum and liability.
f. That the Honourable learned trial Magistrate erred in law and facts by failing to properly evaluate the evidence on record thus reaching an erroneous decision.
8. The Appellants seek that the appeal be allowed and the decree of Hon. Tom M. Olando be set aside. In the alternative, they invite the Court to re-assess the evidence on record on liability and quantum and make its own decision.
9. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive.
10. This being a first appellate Court, I am guided by the principles set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
“…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
11. The provisions of Sections 107,109 and 112 of the Evidence Act were discussed in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
12. The Respondent who was the Claimant in the case before the lower court had the onus of proving his case against the Appellants whether or not the Appellants adduced any evidence. Lord Nichol of the House of Lords in the case of Re: H & Others (Minors) (Sexual Abuse: Standard of Proof) (1969) stated the civil standard of proof to be:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probability, the court will have in mind as factors, to whatever extent is appropriate in the particular case, that the more serious allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
13. The Respondent relied on the evidence of three (3) witnesses while the Appellants called one (1) witness. Dr. Joseph Sikobe (PW1) testified that he is based at Eldoret Hospital and he was before the Court to avail the medical report of the Respondent dated 18th January 2021. According to him, the Respondent sustained a fracture olecranon process (fracture at the right elbow) with bruises and that his present complaint was pain at the right elbow. He told the Court that on examining the Respondent he noted mild tenderness on deep right elbow palpation and his prognosis was that the Respondent sustained both soft and bony (fracture) tissue injuries from which he is recovering well. He told the Court that he was also guided by the treatment notes from Bungoma County Referral Hospital, P3 form and referral letter from Elgon view Medical Cottage and the x-ray report when doing his report. He produced in Court the medical report as PEXH 1(b); treatment notes as PEXH 2; P3 form as PEXH 3; referral report as PEXH 4 and the x-ray as PEXH 5. He told the Court that he charged the Respondent Kshs. 6,000/=. On cross-examination, he told the Court that he saw the patient 5 months after the accident and he also examined him.
14. Micha Wanyonyi Wabwile (PW2) while adopting his recorded witness statement as his evidence in chief, testified that on 25th April 2020, at around 11.00 a.m. while lawfully riding his motor cycle registration number KMEW 470M along Kanduyi-Malaba road, on reaching Kimwanga area he was involved in a road traffic accident whereby the motor vehicle registration number KAR 681E while attempting to overtake him hit his motor cycle, knocking him down in the process. He blamed the driver of the motor vehicle registration number KAR 681E cause according to him, the driver was driving at a speed that was excessive and unsafe and he was driving without undue regard, attention and/or concentration prompting him to fail to maintain a safe distance prior to him overtaking. On cross-examination, he told the Court that he was hit from the left side as they were both heading the same direction and the motor vehicle driver failed to indicate that he intended to overtake him. On re-examination, he told the Court that he was from Malaba heading towards Bungoma and he was ahead of the motor vehicle.
15. No. 81576 PC Jackline Were (PW3) testified that she is currently based at Bungoma Police Station, Traffic Section, and that she was before Court to produce the Police Abstract for the Respondent herein. She told the Court that the accident occurred along Bungoma-Malaba road under motor cycle KMEW 470M TVS star and motor vehicle registration KAR 681 E Mistubishi code. She told the Court that the matter was registered at Bungoma police station vide OB NO. 74/23/8/2020 and the listed victim was the motorcycle rider. She produced the Police abstract in Court as PEXH 9. On cross-examination, she told the Court that she was not the investigating officer in this matter and that she did not avail before the Court the police file and sketch maps. She testified that the abstract was issued prior to the conclusion of the investigations thus could not be able to tell who was to blame for the accident.
16. The Appellants relied on the evidence of Antony Kimgori (DW1) who adopted his recorded witness statement dated 25th March 2021 as his evidence in chief. He testified that the accident occurred on 25th August 2021at around 11.30 a.m. while he was driving motor vehicle registration number KAR 681E towards Malaba and as he was approaching a feeder road, around Kimwanga area, there was a trailer coming from Malaba towards Bungoma and the driver of the said lorry signaled another lorry to proceed. The same driver signaled him to proceed but since it was the roundabout, the road was very steep and he had to stop to check how steep it was and while he was waiting a motorcycle rider suddenly hit his car from the left hand side of the front and he was riding at a very high speed. He told the Court that the rider was overtaking from the left hand side of the lorry which had signaled him to proceed and as a result he hit an adjacent culvert and fell off. He told the Court that the motor cycle rider had not spotted him and that due to lack of control he hit his car. On cross-examination, he testified that the motor vehicle registration number KAR 681E that was involved in the accident belonged to the 1st Appellant herein and that he was on the opposite direction of Malaba direction. He told the Court that the motorcycle came on the left side and pushed the motor cycle on his side.
17. The trial magistrate noted that the oral evidence of the 2nd Appellant herein contradicted his recorded statement as adopted as his evidence in chief. He noted that the 2nd Appellant testified and stated he was turning into a feeder road and there was a lorry which had signaled him to pass but his vehicle was hit by the rider. The trial magistrate also noted that the 2nd Appellant stated in his statement that he had stopped to check the condition of the road since it was steep and he found it difficult to believe he was telling the truth. He proceeded to note it was possible the 2nd Appellant caused the accident by obstruction since he stated that he had stopped on the road to check its condition. He held that in light of the contradictions in the defence evidence, the Respondent’s evidence was unchallenged and proceed to find the Appellants 100% liable for the accident.
18. The burden of proof lies on he who alleges and, in this case, it was upon the Respondent to prove his case before the trial Court on a balance of probabilities. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
19. The question is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
20. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal held that:
“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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
21. However, as was observed by the Court of Appeal in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) AC 663 at p 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…”
22. Reevaluating the evidence adduced before the trial court, the evidence by the Respondent who was the Plaintiff/Claimant and that of the Appellants it is clear that the recorded statement of the 2nd Appellant which was adopted as his evidence in chief and the evidence tendered during cross examination were contradictory in nature. At one point his testimony was on 25th August 2021at around 11.30 a.m. while he was driving motor vehicle registration number KAR 681E towards Malaba and as he was approaching a feeder road, around Kimwanga area, there was a trailer coming from Malaba towards Bungoma and the driver of the said lorry signaled another lorry to proceed. The same driver signaled him to proceed but since it was the roundabout, the road was very steep and he had to stop to check how steep it was and while he was waiting a motorcycle rider suddenly hit his car from the left-hand side of the front and he was riding at a very high speed. He told the Court that the rider was overtaking from the left-hand side of the lorry which had signaled him to proceed and as a result he hit an adjacent culvert and fell off. He told the Court that the motor cycle rider had not spotted him and that due to lack of control he hit his car. During his cross-examination he also told the Court that the motor vehicle registration number KAR 681E was on the opposite direction of Malaba direction. He told the Court that the motorcycle came on the left side and pushed the motor cycle on his side.
23. From the evidence adduced before the trial Court, it is clear that whereas the Respondent was consistent in his testimony on what happened on that material day, the Appellants gave several versions of how the accident occurred. The issue therefore is whether the respondent or her rider ought to have been held liable or whether the Respondent contributed to the occurrence of the accident and if so, in what proportion?
24. In this case, this Court is being called upon to interfere with the trial Court’s finding on liability. In Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
25. The same position was taken in Isabella Wanjiru Karangu v Washington Malele Civil Appeal No 50 of 1981 [1983] KLR 142 and Mahendra M Malde v George M Angira Civil Appeal No 12 of 1981, where the Court stated that apportionment of blame represents an exercise of a discretion with which the appellate Court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.
26. It is not disputed that the pleaded accident occurred or that the Respondent was on the motorcycle when the accident took place. As earlier stated on cross-examination, he told the Court that he was hit from the left side as they were both heading the same direction and the motor vehicle driver failed to indicate that he intended to overtake him. On re-examination, he told the Court that he was from Malaba heading towards Bungoma and he was ahead of the motor vehicle. This clearly means that the Respondent himself was not keen of the other road users around him and he assumed a lot. A good friend once told me that while on the road always assume that you are the only safe rider/driver and that plays a pivotal role on the duty of care you aim to practice to ensure that you protect the lives of the other road users. I digress, such conduct by the Respondent clearly depicted that he was not alert enough to know what has happening around him and also avoid any accidents. Such behaviour should not go un-condemned and it should not be rewarded.
27. On his part the 2nd Appellant testified that he was surveying the steepness of the road while also claiming that he had stopped. Bear in mind that he was behind a lorry that had allegedly signaled him to proceed. He testified that is was during this point that the motor cycle rider hit his car on the left side.
28. In determining liability, the Court must consider the facts of the case and conclude as to what mostly contributed to the cause of the accident. The Court will consider the manner of driving, identify the person who was at fault and place the blame on him. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the Court will apportion liability.
29. This evidence of the Appellants and the Respondent did not in any manner shed the light on how exactly the accident occurred. The Respondent did not avail the evidence of the investigating officer or the police file plus sketch maps to clearly elaborate to the Court how the accident occurred. With two conflicting narratives of both individuals this Court could not establish who truly caused the accident. Therefore, it was however erroneous in my view for the trial Court to hold the Appellants fully liable, based on the fact that the Appellants evidence was contradictory. It is elaborate that the evidence on record did not establish how the accident occurred. In this case, it was rational to apportion liability in the ratio of 50:50 between the Appellants and the Respondents herein.
30. The second aspect of the appeal contested the amount awarded for pain and suffering. In an appeal against assessment of damages an appellate Court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
31. I have myself considered the impugned judgment of the trial Court. It is clear from the same that in arriving at the award, the trial court relied on the related cases of Osman Mohammed & Anor vs Saluro Bandit Mohammed Civil Appeal No. 30 of 1997.
32. The Appellants in their lower Court submissions submitted that an award of Kshs. 150,000/= ought to be sufficient compensation. On the other hand, the Respondent submitted that an award of Kshs. 700,000/= was sufficient for general damages on pain and suffering.
33. I have considered the authorities relied on by both parties in this appeal as well as before the trial Court.
34. In the case of Ephraim Wagura Muthui & 2 others V Toyota Kenya Limited & 2 others [2019] eKLR where the Court assessed damages at Kshs. 100,000/= for soft tissue injuries.
35. In Ephraim Wagura Muthui 2 others V Toyota Kenya Limited & 2 others [2019] eKLR Majanja J set aside the lower Court award of Kshs. 55,000 for cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back and substituted it with an award of Kshs. 100,000/=.
36. The award in the case of Ephraim Wagura (supra) was made six years ago and as this Court must take passage of time and inflation into account, although the suit was initiated in Court in 2021, it was not until 23rd March 2023, three years later that judgment was rendered.
37. In the end, I find that the award of damages by the trial magistrate was not manifestly excessive, exorbitant and it was solely based on material placed before it whether by way of pleadings on the injuries sustained or medical documents produced.
38. In the circumstances I thus set aside the judgment and decree of the lower Court on liability and enter judgement for the Appellants as follows, liability apportionment set on a ratio of 50% Appellants and 50% Respondent.
39. Accordingly, this appeal fails on quantum, each party shall bear their own costs of the appeal.
40. This file is thus marked as closed.
Orders accordingly.
Dated and delivered at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
MS MWANGI FOR THE APPELLANTS
MS LUGULU FOR THE RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E034 OF 2023
DORCAS WANJIRU CHEGE………………………………1ST APPELLANT
ANTONY KING’ORI………………………………….…..2ND APPELLANT
VERSUS
MICAH WABWILE WANYONYI……………………………RESPONDENT
(Being as appeal from the judgement of Hon. Tom M. Olando-PM, delivered on 23rd March 2023, in Chief Magistrate’s Court at Bungoma CMCC No. 188 of 2021)
JUDGEMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on liability and quantum. The Appellants seek that the appeal be allowed and judgment on quantum of the lower court be review downwards, the costs of the appeal and of the Court below, as well as such further or other orders the Honourable Court may find fit to issue.
2. By a plaint dated 26th March 2026, at Bungoma Chief Magistrate’s Court No. 188 of 2021, the Respondent sued the Appellants herein for general damages, special damages, costs of the suit, and interest for bodily injuries sustained out of a road accident that occurred on or about 25th August 2020, along Bungoma-Malaba road.
3. The Respondent claimed that he was riding motorcycle registration number KMEW 470M along Bungoma-Malaba road when at Machwele area, motor vehicle Registration Number KAR 681E, which was driven recklessly and lost control and hit him causing him to sustain serious injuries.
4. The Appellants in their response denied the particulars of negligence attributed to them and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent.
5. During the hearing, the Respondent called three witnesses, while the Appellant called one witness.
6. After hearing and an in-depth analysis of the evidence before Court, the trial Court found both parties equally liable for the said accident. The trial Court proceeded to award the following: -
I. General damages for pain and suffering Kshs. 300, 000/=
II. Special damages Kshs 9,132/=
Total Kshs 309,132/=
Plus, costs and interest
7. The Appellants are dissatisfied with the trial magistrate’s finding on liability and quantum. The memorandum of appeal dated 19th April 2023 raises the following grounds:
a. That the Honourable learned trial Magistrate erred in law in entering judgement in favour of the Respondent whereas the same failed to prove his claim to the required standard.
b. That the Honourable learned trial Magistrate erred in law and in fact in the assessment of damages payable and apportionment of liability.
c. That the Honourable learned trial Magistrate misdirected herself by failing to consider and apply some weight on the submissions by the Appellants while arriving at the judgement.
d. That the Honourable learned trial Magistrate erred in awarding excessive quantum of damages and an erroneous estimate of the damages to the Respondent without due regard to the weight of precedents in similar circumstances.
e. That the Honourable learned trial Magistrate erred in law and facts in relying on extraneous evidence in arriving at the decision on quantum and liability.
f. That the Honourable learned trial Magistrate erred in law and facts by failing to properly evaluate the evidence on record thus reaching an erroneous decision.
8. The Appellants seek that the appeal be allowed and the decree of Hon. Tom M. Olando be set aside. In the alternative, they invite the Court to re-assess the evidence on record on liability and quantum and make its own decision.
9. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive.
10. This being a first appellate Court, I am guided by the principles set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
“…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
11. The provisions of Sections 107,109 and 112 of the Evidence Act were discussed in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
12. The Respondent who was the Claimant in the case before the lower court had the onus of proving his case against the Appellants whether or not the Appellants adduced any evidence. Lord Nichol of the House of Lords in the case of Re: H & Others (Minors) (Sexual Abuse: Standard of Proof) (1969) stated the civil standard of proof to be:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probability, the court will have in mind as factors, to whatever extent is appropriate in the particular case, that the more serious allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
13. The Respondent relied on the evidence of three (3) witnesses while the Appellants called one (1) witness. Dr. Joseph Sikobe (PW1) testified that he is based at Eldoret Hospital and he was before the Court to avail the medical report of the Respondent dated 18th January 2021. According to him, the Respondent sustained a fracture olecranon process (fracture at the right elbow) with bruises and that his present complaint was pain at the right elbow. He told the Court that on examining the Respondent he noted mild tenderness on deep right elbow palpation and his prognosis was that the Respondent sustained both soft and bony (fracture) tissue injuries from which he is recovering well. He told the Court that he was also guided by the treatment notes from Bungoma County Referral Hospital, P3 form and referral letter from Elgon view Medical Cottage and the x-ray report when doing his report. He produced in Court the medical report as PEXH 1(b); treatment notes as PEXH 2; P3 form as PEXH 3; referral report as PEXH 4 and the x-ray as PEXH 5. He told the Court that he charged the Respondent Kshs. 6,000/=. On cross-examination, he told the Court that he saw the patient 5 months after the accident and he also examined him.
14. Micha Wanyonyi Wabwile (PW2) while adopting his recorded witness statement as his evidence in chief, testified that on 25th April 2020, at around 11.00 a.m. while lawfully riding his motor cycle registration number KMEW 470M along Kanduyi-Malaba road, on reaching Kimwanga area he was involved in a road traffic accident whereby the motor vehicle registration number KAR 681E while attempting to overtake him hit his motor cycle, knocking him down in the process. He blamed the driver of the motor vehicle registration number KAR 681E cause according to him, the driver was driving at a speed that was excessive and unsafe and he was driving without undue regard, attention and/or concentration prompting him to fail to maintain a safe distance prior to him overtaking. On cross-examination, he told the Court that he was hit from the left side as they were both heading the same direction and the motor vehicle driver failed to indicate that he intended to overtake him. On re-examination, he told the Court that he was from Malaba heading towards Bungoma and he was ahead of the motor vehicle.
15. No. 81576 PC Jackline Were (PW3) testified that she is currently based at Bungoma Police Station, Traffic Section, and that she was before Court to produce the Police Abstract for the Respondent herein. She told the Court that the accident occurred along Bungoma-Malaba road under motor cycle KMEW 470M TVS star and motor vehicle registration KAR 681 E Mistubishi code. She told the Court that the matter was registered at Bungoma police station vide OB NO. 74/23/8/2020 and the listed victim was the motorcycle rider. She produced the Police abstract in Court as PEXH 9. On cross-examination, she told the Court that she was not the investigating officer in this matter and that she did not avail before the Court the police file and sketch maps. She testified that the abstract was issued prior to the conclusion of the investigations thus could not be able to tell who was to blame for the accident.
16. The Appellants relied on the evidence of Antony Kimgori (DW1) who adopted his recorded witness statement dated 25th March 2021 as his evidence in chief. He testified that the accident occurred on 25th August 2021at around 11.30 a.m. while he was driving motor vehicle registration number KAR 681E towards Malaba and as he was approaching a feeder road, around Kimwanga area, there was a trailer coming from Malaba towards Bungoma and the driver of the said lorry signaled another lorry to proceed. The same driver signaled him to proceed but since it was the roundabout, the road was very steep and he had to stop to check how steep it was and while he was waiting a motorcycle rider suddenly hit his car from the left hand side of the front and he was riding at a very high speed. He told the Court that the rider was overtaking from the left hand side of the lorry which had signaled him to proceed and as a result he hit an adjacent culvert and fell off. He told the Court that the motor cycle rider had not spotted him and that due to lack of control he hit his car. On cross-examination, he testified that the motor vehicle registration number KAR 681E that was involved in the accident belonged to the 1st Appellant herein and that he was on the opposite direction of Malaba direction. He told the Court that the motorcycle came on the left side and pushed the motor cycle on his side.
17. The trial magistrate noted that the oral evidence of the 2nd Appellant herein contradicted his recorded statement as adopted as his evidence in chief. He noted that the 2nd Appellant testified and stated he was turning into a feeder road and there was a lorry which had signaled him to pass but his vehicle was hit by the rider. The trial magistrate also noted that the 2nd Appellant stated in his statement that he had stopped to check the condition of the road since it was steep and he found it difficult to believe he was telling the truth. He proceeded to note it was possible the 2nd Appellant caused the accident by obstruction since he stated that he had stopped on the road to check its condition. He held that in light of the contradictions in the defence evidence, the Respondent’s evidence was unchallenged and proceed to find the Appellants 100% liable for the accident.
18. The burden of proof lies on he who alleges and, in this case, it was upon the Respondent to prove his case before the trial Court on a balance of probabilities. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
19. The question is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
20. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal held that:
“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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
21. However, as was observed by the Court of Appeal in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) AC 663 at p 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…”
22. Reevaluating the evidence adduced before the trial court, the evidence by the Respondent who was the Plaintiff/Claimant and that of the Appellants it is clear that the recorded statement of the 2nd Appellant which was adopted as his evidence in chief and the evidence tendered during cross examination were contradictory in nature. At one point his testimony was on 25th August 2021at around 11.30 a.m. while he was driving motor vehicle registration number KAR 681E towards Malaba and as he was approaching a feeder road, around Kimwanga area, there was a trailer coming from Malaba towards Bungoma and the driver of the said lorry signaled another lorry to proceed. The same driver signaled him to proceed but since it was the roundabout, the road was very steep and he had to stop to check how steep it was and while he was waiting a motorcycle rider suddenly hit his car from the left-hand side of the front and he was riding at a very high speed. He told the Court that the rider was overtaking from the left-hand side of the lorry which had signaled him to proceed and as a result he hit an adjacent culvert and fell off. He told the Court that the motor cycle rider had not spotted him and that due to lack of control he hit his car. During his cross-examination he also told the Court that the motor vehicle registration number KAR 681E was on the opposite direction of Malaba direction. He told the Court that the motorcycle came on the left side and pushed the motor cycle on his side.
23. From the evidence adduced before the trial Court, it is clear that whereas the Respondent was consistent in his testimony on what happened on that material day, the Appellants gave several versions of how the accident occurred. The issue therefore is whether the respondent or her rider ought to have been held liable or whether the Respondent contributed to the occurrence of the accident and if so, in what proportion?
24. In this case, this Court is being called upon to interfere with the trial Court’s finding on liability. In Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
25. The same position was taken in Isabella Wanjiru Karangu v Washington Malele Civil Appeal No 50 of 1981 [1983] KLR 142 and Mahendra M Malde v George M Angira Civil Appeal No 12 of 1981, where the Court stated that apportionment of blame represents an exercise of a discretion with which the appellate Court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.
26. It is not disputed that the pleaded accident occurred or that the Respondent was on the motorcycle when the accident took place. As earlier stated on cross-examination, he told the Court that he was hit from the left side as they were both heading the same direction and the motor vehicle driver failed to indicate that he intended to overtake him. On re-examination, he told the Court that he was from Malaba heading towards Bungoma and he was ahead of the motor vehicle. This clearly means that the Respondent himself was not keen of the other road users around him and he assumed a lot. A good friend once told me that while on the road always assume that you are the only safe rider/driver and that plays a pivotal role on the duty of care you aim to practice to ensure that you protect the lives of the other road users. I digress, such conduct by the Respondent clearly depicted that he was not alert enough to know what has happening around him and also avoid any accidents. Such behaviour should not go un-condemned and it should not be rewarded.
27. On his part the 2nd Appellant testified that he was surveying the steepness of the road while also claiming that he had stopped. Bear in mind that he was behind a lorry that had allegedly signaled him to proceed. He testified that is was during this point that the motor cycle rider hit his car on the left side.
28. In determining liability, the Court must consider the facts of the case and conclude as to what mostly contributed to the cause of the accident. The Court will consider the manner of driving, identify the person who was at fault and place the blame on him. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the Court will apportion liability.
29. This evidence of the Appellants and the Respondent did not in any manner shed the light on how exactly the accident occurred. The Respondent did not avail the evidence of the investigating officer or the police file plus sketch maps to clearly elaborate to the Court how the accident occurred. With two conflicting narratives of both individuals this Court could not establish who truly caused the accident. Therefore, it was however erroneous in my view for the trial Court to hold the Appellants fully liable, based on the fact that the Appellants evidence was contradictory. It is elaborate that the evidence on record did not establish how the accident occurred. In this case, it was rational to apportion liability in the ratio of 50:50 between the Appellants and the Respondents herein.
30. The second aspect of the appeal contested the amount awarded for pain and suffering. In an appeal against assessment of damages an appellate Court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
31. I have myself considered the impugned judgment of the trial Court. It is clear from the same that in arriving at the award, the trial court relied on the related cases of Osman Mohammed & Anor vs Saluro Bandit Mohammed Civil Appeal No. 30 of 1997.
32. The Appellants in their lower Court submissions submitted that an award of Kshs. 150,000/= ought to be sufficient compensation. On the other hand, the Respondent submitted that an award of Kshs. 700,000/= was sufficient for general damages on pain and suffering.
33. I have considered the authorities relied on by both parties in this appeal as well as before the trial Court.
34. In the case of Ephraim Wagura Muthui & 2 others V Toyota Kenya Limited & 2 others [2019] eKLR where the Court assessed damages at Kshs. 100,000/= for soft tissue injuries.
35. In Ephraim Wagura Muthui 2 others V Toyota Kenya Limited & 2 others [2019] eKLR Majanja J set aside the lower Court award of Kshs. 55,000 for cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back and substituted it with an award of Kshs. 100,000/=.
36. The award in the case of Ephraim Wagura (supra) was made six years ago and as this Court must take passage of time and inflation into account, although the suit was initiated in Court in 2021, it was not until 23rd March 2023, three years later that judgment was rendered.
37. In the end, I find that the award of damages by the trial magistrate was not manifestly excessive, exorbitant and it was solely based on material placed before it whether by way of pleadings on the injuries sustained or medical documents produced.
38. In the circumstances I thus set aside the judgment and decree of the lower Court on liability and enter judgement for the Appellants as follows, liability apportionment set on a ratio of 50% Appellants and 50% Respondent.
39. Accordingly, this appeal fails on quantum, each party shall bear their own costs of the appeal.
40. This file is thus marked as closed.
Orders accordingly.
Dated and delivered at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
MS MWANGI FOR THE APPELLANTS
MS LUGULU FOR THE RESPONDENT
PETER MACHONI - COURT ASSISTANT