(Being an Appeal from the Judgment of Hon. P.K. Rotich (SPM (as he then was)) delivered on 28 th July 2023 in Milimani Commercial Civil Suit No. E5938 of 2019)
Introduction
1. This appeal arises from the judgment of Milimani Commercial Court at Milimani ( P.K. Rotich, SPM (as he then was) ) delivered on 10 th May 2023 in Milimani CMCC No. E5983 of 2019.
2. The claim before the trial court arose from a road traffic accident that occurred on 21 st January 2019 along Aoko Road. David Mutua Ndambuki (the Respondent), a minor suing through his next friend, was at the material time a pedestrian when he was knocked down by motor vehicle registration number KBN 931J. The respondent attributed the accident to the negligence of Arafa Naftali Edward (the 2 nd Appellant), the driver of the said motor vehicle and Erneo Okongo Mathew (1 st Appellant), vicariously liable as he was the owner of the said motor vehicle.
3. By a plaint dated 8 th August 2019, the respondent, through his next friend, sought general damages, special damages in the sum of KShs.56,130/=, costs and interest thereon.
4. The respondent particularized his injuries as: fractures of both lower limbs and injuries on the right ankle joint, resulting in permanent incapacity assessed at 35%.
5. The appellants filed their defence dated 22 nd March 2021 denying liability In the alternative, they pleaded that is the accident occurred, the same was wholly caused or substantially contributed to by the negligence of the minor.
6. PW1 Raymond Ndambuki Maingi adopted his witness statement dated 30 th November 2022 and produced his list of documents dated 8 th August 2019: demand letter dated 5 th February 2019, treatment notes from South B Hospital and receipts thereof, radiologist report from Meridian Health Hospital, P3 form, police abstract, medical report and receipt thereof, picture of the deceased (later amended during trial to be picture of the minor) and a copy of records for KBN 931J. On cross-examination, it was his case that the minor understood traffic rules and that the 2 nd appellant catered for the medical expenses. It is notable that the appellants objected to the production of the medical report listed as no. 6 on the list of documents.
7. PW2, Dominic Yatta Mutisya , adopted his amended witness statement dated 30 th November 2022 as his evidence-in-chief. On cross-examination, he stated that the minor was walking beside him when the accident occurred, and that he narrowly avoided being hit by the same motor vehicle. The respondent’s counsel closed their case, adding that they would not be cross-examining Dr. Wokabi who had authored their medical report.
8. The defence called two witnesses. DW1, Dr. Wafula Khamala , produced the medical report dated 8 th June 2021 attached to the appellants’ list and bundle of documents dated 29 th June 2021. According to this report, the minor had sustained fractures of the bilateral lower tibia and fibula bones, which had healed fully, with no permanent impairment and no sequela was anticipated. On cross-examination, he reiterated that the minor had fully healed and was able to perform his daily activities.
9. DW2, Arafa Naftali Laku, adopted her witness statement dated 14 th November (although the witness statement is dated October) 2021 and her evidence-in-chief and produced exhibits per the list of documents dated 22 nd March 2021. During cross-examination, she testified that the road was narrow and a heavy vehicle was parked nearby. It was her case that she waited for the oncoming vehicle to pass before she did. She added that although she saw the minor, who appeared to have a medical condition with his legs, walking on the side of the road, she only heard a bang after passing and was unaware of how the accident occurred. The fractures were confirmed at the hospital.
10. In its judgment dated 28 th July 2023, the trial court held that the respondent’s account of the accident was undisturbed. Accordingly, the appellants were found 100% liable for the accident, with the 1 st appellant vicariously liable as the owner of the motor vehicle.
11. As regards quantum, the trial court awarded the respondent KShs. 2,000,000/-= in general damages, taking into account the serious injuries sustained and the assessed permanent incapacity. In the end, judgment was entered jointly and severally against the appellants, with costs and interest awarded to the respondent.
The Appeal
12. Aggrieved, the appellants filed a Memorandum of Appeal dated 16 th October 2023 raising 3 grounds of appeal, to wit, that the learned trial Magistrate erred:
i. In law and fact in awarding excessive damages.
ii. In law and fact by failing to consider the pleadings, evidence and submissions filed by the appellants.
iii. By failing to apportion liability between the appellants and respondent.
13. Consequently, the appellants urge this Court to allow the appeal, set aside the award of the trial court and to apportion liability between the parties.
The Appellants’ Submissions
14. In their submissions dated 6 th March 2026, the appellants crystallized 3 issues for determination: whether the trial court erred in apportioning 100% liability to the appellants, whether the trial court properly assessed the quantum awarded and costs .
15. On liability, they contended that the trial court failed to properly analyze material discrepancies in PW2’s testimony, to wit, whether the minor was ahead of him or he was waiting to cross the road together with the minor. In addition, having failed to call the investigating officer and failing to produce the police file, it was their case that the respondent had failed to prove negligence on their part. They relied on Alfred Kioko Muteti vs Timothy Miheso & Another [2015] KEHC 520 (KLR) for the proposition that where police investigations as to the cause of an accident are inconclusive, such as the case here, liability ought not to have been attached to the appellants, not to mention that the appellants contend that the 1 st appellant was driving at 5 km/hr.
16. What is more, posited the appellants, since the minor was 13 years old and knew how to use the road, the trial court ought to have considered contributory negligence and apportioned liability between the parties.
17. On the second issue of quantum, the appellants submitted that Dr. Wokabi’s medical report was marked for identification but not produced and therefore was not evidence per the holding in County Government of Homa Bay vs Oasis Group International & GA Insurance Limited [2017] KEHC 5024 (KLR) . According to the appellants, Dr. Khamala’s medical report produced by the appellants did not highlight any permanent disability, and therefore an award of Kshs. 2,000,000/= as general damages was excessive. In the circumstances, argued the appellants, this Court has discretion to disturb the same.
18. Consequently, the appellants urged this Court to award Kshs. 500,000/= as general damages in view of comparable awards for comparable injuries in the cases of Ndwiga & Another vs Mukimba (Civil Appeal E006 of 2022) [2022] KEHC 11793 (KLR), Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR) and Zachariah Mwangi Njeru vs Joseph Wachira Kanoga [2014] KEHC 3995 (KLR) where the victims were awarded KShs. 500,000/=, KShs. 400,000/= and KShs. 400,000/= respectively.
19. In sum, the appellants urged this Court to allow the appeal as above and award them costs.
The Respondent’s Submissions
20. In his submissions opposing the appeal and dated 16 th March 2026, the respondent submitted that the trial court rightly found the appellants wholly liable, noting that the respondent was a minor who could not be held at the same level of accountability as adults. Furthermore, evidence was led to prove that the minor was actually walking on the side of the road when the 1 st appellant hit him.
21. On quantum, the respondent maintained that the trial court’s award of Kshs. 2,000,000/= was justified in light of the nature and extent of the injuries sustained and was consistent with comparable awards.
ANALYSIS AND DETERMINATION
22. This being a first appeal, I am alive to the principle that the first appellate court is required to re-appraise the evidence, evaluate it and draw its own conclusions making an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126 ).
23. I have carefully reviewed the evidence adduced before the trial court. PW1 did not witness the accident so he could not blame the driver of the accident motor vehicle as he purported to do. The fact that an accident took place involving the appellants’ motor vehicle and the respondent minor is not in dispute. It is also not in dispute that the minor was a pedestrian along the said road.
24. PW2 stated that he was walking along the road and that the driver of the motor vehicle registration number KBN 931J was driving too fast. He stated that the minor was hit while beside the road. this was confirmed by DW1 who stated that the minor was not crossing the road but walking on the side of the road. It therefore follows that the subject motor vehicle must have veered off the road for it to hit the minor. The driver, Arafa Naftali Laku, the 2 nd appellant herein, did not attribute any blame to the minor. His testimony before the trial court was that he did not know what happened. That he just heard a bang and did not know what happened to the boy after he had passed.
25. Going by the evidence on record, the trial court was right in finding and holding the appellants wholly liable for the accident. This court has no reason to interfere with the said finding.
26. On the issue of quantum, the minor sustained fractures on both legs. He suffered fractures of the left tibia/fibula and the right tibia/fibula. The second appellant acknowledged the injuries during cross-examination where he stated that the minor broke both legs. as rightly submitted by the appellants, the medical report by Dr. Wokabi was only marked for identification but was never produced as an exhibit. Nevertheless, the injuries were also confirmed by the medical report of Dr. N. W. Khamala which was produced by the appellants. According to the defendants’ doctor, there was no resultant permanent incapacity. That notwithstanding, the respondent minor sustained severe injuries which were classified as grievous harm.
27. The award of Kshs. 2,000,000/= was slightly excessive in view of the fact that the purported permanent incapacity of 35% had not been proved. In the circumstances, I would set aside the trial court’s award of Kshs. 2,000,000/= and substitute it with an award of Kshs. 1,500,000/=.
28. On the question of costs, the appellants have partially succeeded in their appeal. In the circumstances of this case, I would order that each party bears its own costs of the appeal.
Disposition and Final Orders
29. The appeal succeeds partially and orders are hereby issued in the following terms:
a) The appeal on liability fails and is hereby rejected.
b) The trial court’s award of Kshs. 2,000,000/= in general damages is hereby set aside and substituted with an award of Kshs. 1,500,000/=.
c) Each party shall bear its own costs in the appeal.
30. It is so ordered.
Dated, signed and delivered virtually this 25 th day of June 2026.
Introduction
1. This appeal arises from the judgment of Milimani Commercial Court at Milimani ( P.K. Rotich, SPM (as he then was) ) delivered on 10 th May 2023 in Milimani CMCC No. E5983 of 2019.
2. The claim before the trial court arose from a road traffic accident that occurred on 21 st January 2019 along Aoko Road. David Mutua Ndambuki (the Respondent), a minor suing through his next friend, was at the material time a pedestrian when he was knocked down by motor vehicle registration number KBN 931J. The respondent attributed the accident to the negligence of Arafa Naftali Edward (the 2 nd Appellant), the driver of the said motor vehicle and Erneo Okongo Mathew (1 st Appellant), vicariously liable as he was the owner of the said motor vehicle.
3. By a plaint dated 8 th August 2019, the respondent, through his next friend, sought general damages, special damages in the sum of KShs.56,130/=, costs and interest thereon.
4. The respondent particularized his injuries as: fractures of both lower limbs and injuries on the right ankle joint, resulting in permanent incapacity assessed at 35%.
5. The appellants filed their defence dated 22 nd March 2021 denying liability In the alternative, they pleaded that is the accident occurred, the same was wholly caused or substantially contributed to by the negligence of the minor.
6. PW1 Raymond Ndambuki Maingi adopted his witness statement dated 30 th November 2022 and produced his list of documents dated 8 th August 2019: demand letter dated 5 th February 2019, treatment notes from South B Hospital and receipts thereof, radiologist report from Meridian Health Hospital, P3 form, police abstract, medical report and receipt thereof, picture of the deceased (later amended during trial to be picture of the minor) and a copy of records for KBN 931J. On cross-examination, it was his case that the minor understood traffic rules and that the 2 nd appellant catered for the medical expenses. It is notable that the appellants objected to the production of the medical report listed as no. 6 on the list of documents.
7. PW2, Dominic Yatta Mutisya , adopted his amended witness statement dated 30 th November 2022 as his evidence-in-chief. On cross-examination, he stated that the minor was walking beside him when the accident occurred, and that he narrowly avoided being hit by the same motor vehicle. The respondent’s counsel closed their case, adding that they would not be cross-examining Dr. Wokabi who had authored their medical report.
8. The defence called two witnesses. DW1, Dr. Wafula Khamala , produced the medical report dated 8 th June 2021 attached to the appellants’ list and bundle of documents dated 29 th June 2021. According to this report, the minor had sustained fractures of the bilateral lower tibia and fibula bones, which had healed fully, with no permanent impairment and no sequela was anticipated. On cross-examination, he reiterated that the minor had fully healed and was able to perform his daily activities.
9. DW2, Arafa Naftali Laku, adopted her witness statement dated 14 th November (although the witness statement is dated October) 2021 and her evidence-in-chief and produced exhibits per the list of documents dated 22 nd March 2021. During cross-examination, she testified that the road was narrow and a heavy vehicle was parked nearby. It was her case that she waited for the oncoming vehicle to pass before she did. She added that although she saw the minor, who appeared to have a medical condition with his legs, walking on the side of the road, she only heard a bang after passing and was unaware of how the accident occurred. The fractures were confirmed at the hospital.
10. In its judgment dated 28 th July 2023, the trial court held that the respondent’s account of the accident was undisturbed. Accordingly, the appellants were found 100% liable for the accident, with the 1 st appellant vicariously liable as the owner of the motor vehicle.
11. As regards quantum, the trial court awarded the respondent KShs. 2,000,000/-= in general damages, taking into account the serious injuries sustained and the assessed permanent incapacity. In the end, judgment was entered jointly and severally against the appellants, with costs and interest awarded to the respondent.
The Appeal
12. Aggrieved, the appellants filed a Memorandum of Appeal dated 16 th October 2023 raising 3 grounds of appeal, to wit, that the learned trial Magistrate erred:
i. In law and fact in awarding excessive damages.
ii. In law and fact by failing to consider the pleadings, evidence and submissions filed by the appellants.
iii. By failing to apportion liability between the appellants and respondent.
13. Consequently, the appellants urge this Court to allow the appeal, set aside the award of the trial court and to apportion liability between the parties.
The Appellants’ Submissions
14. In their submissions dated 6 th March 2026, the appellants crystallized 3 issues for determination: whether the trial court erred in apportioning 100% liability to the appellants, whether the trial court properly assessed the quantum awarded and costs .
15. On liability, they contended that the trial court failed to properly analyze material discrepancies in PW2’s testimony, to wit, whether the minor was ahead of him or he was waiting to cross the road together with the minor. In addition, having failed to call the investigating officer and failing to produce the police file, it was their case that the respondent had failed to prove negligence on their part. They relied on Alfred Kioko Muteti vs Timothy Miheso & Another [2015] KEHC 520 (KLR) for the proposition that where police investigations as to the cause of an accident are inconclusive, such as the case here, liability ought not to have been attached to the appellants, not to mention that the appellants contend that the 1 st appellant was driving at 5 km/hr.
16. What is more, posited the appellants, since the minor was 13 years old and knew how to use the road, the trial court ought to have considered contributory negligence and apportioned liability between the parties.
17. On the second issue of quantum, the appellants submitted that Dr. Wokabi’s medical report was marked for identification but not produced and therefore was not evidence per the holding in County Government of Homa Bay vs Oasis Group International & GA Insurance Limited [2017] KEHC 5024 (KLR) . According to the appellants, Dr. Khamala’s medical report produced by the appellants did not highlight any permanent disability, and therefore an award of Kshs. 2,000,000/= as general damages was excessive. In the circumstances, argued the appellants, this Court has discretion to disturb the same.
18. Consequently, the appellants urged this Court to award Kshs. 500,000/= as general damages in view of comparable awards for comparable injuries in the cases of Ndwiga & Another vs Mukimba (Civil Appeal E006 of 2022) [2022] KEHC 11793 (KLR), Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR) and Zachariah Mwangi Njeru vs Joseph Wachira Kanoga [2014] KEHC 3995 (KLR) where the victims were awarded KShs. 500,000/=, KShs. 400,000/= and KShs. 400,000/= respectively.
19. In sum, the appellants urged this Court to allow the appeal as above and award them costs.
The Respondent’s Submissions
20. In his submissions opposing the appeal and dated 16 th March 2026, the respondent submitted that the trial court rightly found the appellants wholly liable, noting that the respondent was a minor who could not be held at the same level of accountability as adults. Furthermore, evidence was led to prove that the minor was actually walking on the side of the road when the 1 st appellant hit him.
21. On quantum, the respondent maintained that the trial court’s award of Kshs. 2,000,000/= was justified in light of the nature and extent of the injuries sustained and was consistent with comparable awards.
ANALYSIS AND DETERMINATION
22. This being a first appeal, I am alive to the principle that the first appellate court is required to re-appraise the evidence, evaluate it and draw its own conclusions making an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126 ).
23. I have carefully reviewed the evidence adduced before the trial court. PW1 did not witness the accident so he could not blame the driver of the accident motor vehicle as he purported to do. The fact that an accident took place involving the appellants’ motor vehicle and the respondent minor is not in dispute. It is also not in dispute that the minor was a pedestrian along the said road.
24. PW2 stated that he was walking along the road and that the driver of the motor vehicle registration number KBN 931J was driving too fast. He stated that the minor was hit while beside the road. this was confirmed by DW1 who stated that the minor was not crossing the road but walking on the side of the road. It therefore follows that the subject motor vehicle must have veered off the road for it to hit the minor. The driver, Arafa Naftali Laku, the 2 nd appellant herein, did not attribute any blame to the minor. His testimony before the trial court was that he did not know what happened. That he just heard a bang and did not know what happened to the boy after he had passed.
25. Going by the evidence on record, the trial court was right in finding and holding the appellants wholly liable for the accident. This court has no reason to interfere with the said finding.
26. On the issue of quantum, the minor sustained fractures on both legs. He suffered fractures of the left tibia/fibula and the right tibia/fibula. The second appellant acknowledged the injuries during cross-examination where he stated that the minor broke both legs. as rightly submitted by the appellants, the medical report by Dr. Wokabi was only marked for identification but was never produced as an exhibit. Nevertheless, the injuries were also confirmed by the medical report of Dr. N. W. Khamala which was produced by the appellants. According to the defendants’ doctor, there was no resultant permanent incapacity. That notwithstanding, the respondent minor sustained severe injuries which were classified as grievous harm.
27. The award of Kshs. 2,000,000/= was slightly excessive in view of the fact that the purported permanent incapacity of 35% had not been proved. In the circumstances, I would set aside the trial court’s award of Kshs. 2,000,000/= and substitute it with an award of Kshs. 1,500,000/=.
28. On the question of costs, the appellants have partially succeeded in their appeal. In the circumstances of this case, I would order that each party bears its own costs of the appeal.
Disposition and Final Orders
29. The appeal succeeds partially and orders are hereby issued in the following terms:
a) The appeal on liability fails and is hereby rejected.
b) The trial court’s award of Kshs. 2,000,000/= in general damages is hereby set aside and substituted with an award of Kshs. 1,500,000/=.
c) Each party shall bear its own costs in the appeal.
30. It is so ordered.
Dated, signed and delivered virtually this 25 th day of June 2026.