Introduction
1. By a Plaint dated 04th April 2023 in Nyamira MCCC E126 of 2023, the Appellant, Felix Murithi Ndiritu, sued the Respondents seeking general damages, special damages, costs and interest arising from a road traffic accident.
2. The Appellant pleaded that on or about 23rd December 2022, he was lawfully travelling as a pillion passenger aboard motor cycle registration number KMEX 104R along Miruka–Nyamira road when the 1st Respondent, as driver or agent of motor vehicle registration number KBW 844Y, negligently drove, managed and/or controlled the said motor vehicle causing it to lose control and knock the motor cycle. He averred that as a result he sustained severe bodily injuries. He pleaded that the 2nd Respondent, being the registered owner of the motor vehicle, was vicariously liable.
3. The Respondents filed their respective Statements of Defence denying negligence and liability. The 2nd Respondent denied ownership and pleaded that it had sold the motor cycle prior to the accident. Liability, occurrence of the accident, and injuries were all disputed.
4. The matter proceeded to full hearing. The Appellant testified and called witnesses including a clinical officer, a police officer, and a medical doctor. The Respondents also testified and called witnesses in support of their defence. Parties filed written submissions.
5. In its judgment delivered on 27th January 2025, the trial court held that the 1st Respondent was solely to blame for the accident but found that the Appellant failed to prove his case on quantum of general damages. The court dismissed the suit on quantum and made no award of damages.
The Appeal
7. Being aggrieved, the Appellant filed a Memorandum of Appeal dated 20th February 2025 raising the following grounds of appeal:
1) That the learned trial magistrate erred in law and fact in dismissing the Appellant’s claim on quantum of general damages.
2) That the learned trial magistrate erred in law and fact in holding that the Appellant failed to prove his injuries.
3) That the learned trial magistrate erred in law and fact by failing to properly evaluate and consider the treatment notes, P3 Form and medical report produced.
4) That the learned trial magistrate erred in law and fact by applying a standard of proof higher than that required in civil cases.
5) That the learned trial magistrate erred in law and fact by misapprehending the evidence on record and arriving at an erroneous decision.
Submissions on Appeal
8. The appeal was canvassed by way of written submissions. The Appellant relied on his written submissions dated 06th November 2025. He submitted that he pleaded and proved the injuries set out in the Plaint dated 04th April 2023, namely right shoulder dislocation, right knee dislocation, multiple bruises to the right and left lower limb, blunt trauma to the neck, chest contusion, blunt trauma to the head, bruises on the right upper limb, and bruises on the left upper limb.
9. In support of his case, he relied on the documentary evidence produced at the trial, namely the treatment notes from Nyamira County Referral Hospital dated 31st December 2022, the P3 Form dated 23rd December 2022, and the medical report prepared by Dr. Morobe. His complaint on appeal is that the trial court fell into error by dismissing the claim on quantum solely on account of the date reflected on the treatment notes.
10. The Appellant relied on Butt v Khan [1977] 1 KLR, Southern Engineering Company Ltd v Musingi Mutua [1985] eKLR, Comply Industries Limited v Mbuvi Simon Mutuku (Civil Appeal No. 121 of 2005), Elbex Express Company Limited v Nabulela (Civil Appeal No. 120 of 2017), Isaac Kang’ethe & Another v Andrew Thuku Loorernet [2022] eKLR, Naomi Momanyi v G4S Security Services (K) Ltd [2018] eKLR, Sheikh Mustafa Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, and Universal Engineering Works v Mohamedali Suleiman Issaji [1951] 2 LRK 99.
11. The Respondents relied on their written submissions dated 16th October 2025. They submitted that the Appellant failed to prove the alleged injuries, that there were discrepancies in dates on treatment notes, and that the Appellant did not sustain the injuries claimed. They contended that the trial court properly evaluated the evidence and reached the correct conclusion. They relied on James Gikonyo v DM [2016] eKLR, Rosemary Karuti Murithi v Benson Njiru Mutuku & 3 Others [2020] eKLR, and Peter Mutinda Wambua v Capture Transport Limited & 2 Others [2023] eKLR.
Issues for Determination
12. From the pleadings, grounds of appeal, submissions and the record, the issues for determination are:
1) Whether the trial court applied the correct standard of proof in evaluating the Appellant’s injuries.
2) Whether the Appellant proved the injuries pleaded on a balance of probabilities.
3) Whether the trial court erred in dismissing the claim on quantum of general damages.
4) Whether the Appellant is entitled to an award of general damages.
Analysis and Determination
13. This being a first appeal, this Court is enjoined to reconsider, re-evaluate and re-analyse the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. The duty of a first appellate court in that regard is well settled. (See Selle v Associated Motor Boat Co. Ltd [1968] EA 123).
14. The central complaint in this appeal concerns not the quantum of damages awarded, but the failure by the trial court to undertake any assessment of damages at all notwithstanding evidence of injury. The applicable appellate principles were articulated in Butt v Khan (supra) where the Court of Appeal held that interference is warranted where the trial court proceeds on wrong principles or misapprehends the evidence. A refusal to assess damages after finding liability and receiving medical evidence constitutes a misdirection in principle.
15. In Southern Engineering Company Ltd v Musingi Mutua (supra), the Court of Appeal emphasised that assessment of damages is an exercise of judicial discretion which must be undertaken judiciously. The exercise presupposes that once injury is established; the court must assess damages guided by comparable awards. The trial court’s approach in declining to undertake that exercise amounted to a failure to exercise discretion, thereby entitling this Court to intervene.
16. The evidentiary threshold applicable to proof of injury was addressed by the Court of Appeal in Comply Industries Limited v Mbuvi Simon Mutuku (Civil Appeal No. 121 of 2005). The Court held that absence or lateness of treatment notes is not, of itself, fatal where other medical evidence supports the claim.
17. In the present matter, the Appellant produced a P3 Form dated 23rd December 2022, treatment notes from Nyamira County Referral Hospital dated 31st December 2022, and a medical report prepared by Dr. Morobe. The trial court discounted this body of evidence on a narrow consideration of dates, contrary to the holistic approach endorsed by the Court of Appeal.
18. In Elbex Express Company Limited v Nabulela (Civil Appeal No. 120 of 2017), the Court of Appeal reiterated that a trial court must evaluate the entirety of the evidence and avoid selective consideration. The impugned judgment demonstrates a compartmentalised approach that overlooked corroborative medical and oral evidence, thereby amounting to a misapprehension of the record.
19. The principle that once injury is proved the court must proceed to assess damages was reaffirmed in Isaac Kang’ethe & Another v Andrew Thuku Loorernet [2022] eKLR. The outright dismissal of a claim on quantum, without assessment, is inconsistent with that principle and undermines the remedial function of civil litigation.
20. In Naomi Momanyi v G4S Security Services (K) Ltd [2018] eKLR, the Court underscored that assessment of damages is a necessary judicial exercise informed by prevailing economic conditions and comparable awards. That authority reinforces the proposition that assessment cannot be avoided where liability and injury have been established.
21. Further, in Sheikh Mustafa Hassan v Nathan Mwangi Kamau Transporters & 5 Others (supra), the Court of Appeal held that appellate interference is justified where the trial court arrives at an entirely erroneous conclusion. The failure to assess damages in the circumstances of this case falls squarely within that category.
22. As regards costs, Universal Engineering Works v Mohamedali Suleiman Issaji (supra) restates the general rule that costs follow the event unless the court orders otherwise for good reason. Given the limited success of the appeal and the remittal ordered, it is appropriate that costs abide the outcome of the assessment.
23. Turning to the Respondents’ authorities, James Gikonyo v DM (supra) correctly states that a plaintiff bears the burden of proof on a balance of probabilities. That principle was met in this case through medical and oral evidence. The dispute before this Court is not the absence of evidence, but the manner in which it was evaluated.
24. Rosemary Karuti Murithi v Benson Njiru Mutuku & 3 Others (supra) concerned liability and contributory negligence. Liability having been conclusively determined by the trial court and not challenged on appeal, that authority is distinguishable.
25. In Peter Mutinda Wambua v Capture Transport Limited & 2 Others (supra) the court affirmed that damages must be assessed on the basis of the evidence placed before the court. Properly understood, that authority supports rather than undermines the Appellant’s position.
26. Upon a careful consideration of the pleadings, evidence, submissions and all the authorities cited, this Court is satisfied that the learned trial magistrate misdirected herself in law by failing to assess damages after evidence of injury had been tendered. The appropriate appellate remedy is therefore to remit the matter for assessment of quantum.
Disposition
20. In the result, the appeal succeeds to the extent only that the learned trial magistrate erred in law in dismissing the Appellant’s claim on quantum of general damages notwithstanding the evidence on record.
21. Accordingly, it is hereby ordered:
1) The judgment in Nyamira MCCC E126 of 2023 delivered on 27th January 2025, in so far as it dismissed the Appellant’s claim on quantum of general damages, is hereby set aside.
2) The suit is hereby remitted to the Chief Magistrate’s Court at Nyamira for the limited and specific purpose of assessment of general damages only, to be undertaken by the same magistrate who delivered the judgment dated 27th January 2025.
3) For the avoidance of doubt, the finding on liability having been conclusively determined by the trial court and not having been disturbed on appeal, the trial court shall not reopen, revisit or re litigate the issue of liability, and shall confine itself strictly to the assessment of quantum on the basis of the pleadings, evidence and submissions already on record.
4) Each party shall bear its own costs of the appeal
1. By a Plaint dated 04th April 2023 in Nyamira MCCC E126 of 2023, the Appellant, Felix Murithi Ndiritu, sued the Respondents seeking general damages, special damages, costs and interest arising from a road traffic accident.
2. The Appellant pleaded that on or about 23rd December 2022, he was lawfully travelling as a pillion passenger aboard motor cycle registration number KMEX 104R along Miruka–Nyamira road when the 1st Respondent, as driver or agent of motor vehicle registration number KBW 844Y, negligently drove, managed and/or controlled the said motor vehicle causing it to lose control and knock the motor cycle. He averred that as a result he sustained severe bodily injuries. He pleaded that the 2nd Respondent, being the registered owner of the motor vehicle, was vicariously liable.
3. The Respondents filed their respective Statements of Defence denying negligence and liability. The 2nd Respondent denied ownership and pleaded that it had sold the motor cycle prior to the accident. Liability, occurrence of the accident, and injuries were all disputed.
4. The matter proceeded to full hearing. The Appellant testified and called witnesses including a clinical officer, a police officer, and a medical doctor. The Respondents also testified and called witnesses in support of their defence. Parties filed written submissions.
5. In its judgment delivered on 27th January 2025, the trial court held that the 1st Respondent was solely to blame for the accident but found that the Appellant failed to prove his case on quantum of general damages. The court dismissed the suit on quantum and made no award of damages.
The Appeal
7. Being aggrieved, the Appellant filed a Memorandum of Appeal dated 20th February 2025 raising the following grounds of appeal:
1) That the learned trial magistrate erred in law and fact in dismissing the Appellant’s claim on quantum of general damages.
2) That the learned trial magistrate erred in law and fact in holding that the Appellant failed to prove his injuries.
3) That the learned trial magistrate erred in law and fact by failing to properly evaluate and consider the treatment notes, P3 Form and medical report produced.
4) That the learned trial magistrate erred in law and fact by applying a standard of proof higher than that required in civil cases.
5) That the learned trial magistrate erred in law and fact by misapprehending the evidence on record and arriving at an erroneous decision.
Submissions on Appeal
8. The appeal was canvassed by way of written submissions. The Appellant relied on his written submissions dated 06th November 2025. He submitted that he pleaded and proved the injuries set out in the Plaint dated 04th April 2023, namely right shoulder dislocation, right knee dislocation, multiple bruises to the right and left lower limb, blunt trauma to the neck, chest contusion, blunt trauma to the head, bruises on the right upper limb, and bruises on the left upper limb.
9. In support of his case, he relied on the documentary evidence produced at the trial, namely the treatment notes from Nyamira County Referral Hospital dated 31st December 2022, the P3 Form dated 23rd December 2022, and the medical report prepared by Dr. Morobe. His complaint on appeal is that the trial court fell into error by dismissing the claim on quantum solely on account of the date reflected on the treatment notes.
10. The Appellant relied on Butt v Khan [1977] 1 KLR, Southern Engineering Company Ltd v Musingi Mutua [1985] eKLR, Comply Industries Limited v Mbuvi Simon Mutuku (Civil Appeal No. 121 of 2005), Elbex Express Company Limited v Nabulela (Civil Appeal No. 120 of 2017), Isaac Kang’ethe & Another v Andrew Thuku Loorernet [2022] eKLR, Naomi Momanyi v G4S Security Services (K) Ltd [2018] eKLR, Sheikh Mustafa Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, and Universal Engineering Works v Mohamedali Suleiman Issaji [1951] 2 LRK 99.
11. The Respondents relied on their written submissions dated 16th October 2025. They submitted that the Appellant failed to prove the alleged injuries, that there were discrepancies in dates on treatment notes, and that the Appellant did not sustain the injuries claimed. They contended that the trial court properly evaluated the evidence and reached the correct conclusion. They relied on James Gikonyo v DM [2016] eKLR, Rosemary Karuti Murithi v Benson Njiru Mutuku & 3 Others [2020] eKLR, and Peter Mutinda Wambua v Capture Transport Limited & 2 Others [2023] eKLR.
Issues for Determination
12. From the pleadings, grounds of appeal, submissions and the record, the issues for determination are:
1) Whether the trial court applied the correct standard of proof in evaluating the Appellant’s injuries.
2) Whether the Appellant proved the injuries pleaded on a balance of probabilities.
3) Whether the trial court erred in dismissing the claim on quantum of general damages.
4) Whether the Appellant is entitled to an award of general damages.
Analysis and Determination
13. This being a first appeal, this Court is enjoined to reconsider, re-evaluate and re-analyse the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. The duty of a first appellate court in that regard is well settled. (See Selle v Associated Motor Boat Co. Ltd [1968] EA 123).
14. The central complaint in this appeal concerns not the quantum of damages awarded, but the failure by the trial court to undertake any assessment of damages at all notwithstanding evidence of injury. The applicable appellate principles were articulated in Butt v Khan (supra) where the Court of Appeal held that interference is warranted where the trial court proceeds on wrong principles or misapprehends the evidence. A refusal to assess damages after finding liability and receiving medical evidence constitutes a misdirection in principle.
15. In Southern Engineering Company Ltd v Musingi Mutua (supra), the Court of Appeal emphasised that assessment of damages is an exercise of judicial discretion which must be undertaken judiciously. The exercise presupposes that once injury is established; the court must assess damages guided by comparable awards. The trial court’s approach in declining to undertake that exercise amounted to a failure to exercise discretion, thereby entitling this Court to intervene.
16. The evidentiary threshold applicable to proof of injury was addressed by the Court of Appeal in Comply Industries Limited v Mbuvi Simon Mutuku (Civil Appeal No. 121 of 2005). The Court held that absence or lateness of treatment notes is not, of itself, fatal where other medical evidence supports the claim.
17. In the present matter, the Appellant produced a P3 Form dated 23rd December 2022, treatment notes from Nyamira County Referral Hospital dated 31st December 2022, and a medical report prepared by Dr. Morobe. The trial court discounted this body of evidence on a narrow consideration of dates, contrary to the holistic approach endorsed by the Court of Appeal.
18. In Elbex Express Company Limited v Nabulela (Civil Appeal No. 120 of 2017), the Court of Appeal reiterated that a trial court must evaluate the entirety of the evidence and avoid selective consideration. The impugned judgment demonstrates a compartmentalised approach that overlooked corroborative medical and oral evidence, thereby amounting to a misapprehension of the record.
19. The principle that once injury is proved the court must proceed to assess damages was reaffirmed in Isaac Kang’ethe & Another v Andrew Thuku Loorernet [2022] eKLR. The outright dismissal of a claim on quantum, without assessment, is inconsistent with that principle and undermines the remedial function of civil litigation.
20. In Naomi Momanyi v G4S Security Services (K) Ltd [2018] eKLR, the Court underscored that assessment of damages is a necessary judicial exercise informed by prevailing economic conditions and comparable awards. That authority reinforces the proposition that assessment cannot be avoided where liability and injury have been established.
21. Further, in Sheikh Mustafa Hassan v Nathan Mwangi Kamau Transporters & 5 Others (supra), the Court of Appeal held that appellate interference is justified where the trial court arrives at an entirely erroneous conclusion. The failure to assess damages in the circumstances of this case falls squarely within that category.
22. As regards costs, Universal Engineering Works v Mohamedali Suleiman Issaji (supra) restates the general rule that costs follow the event unless the court orders otherwise for good reason. Given the limited success of the appeal and the remittal ordered, it is appropriate that costs abide the outcome of the assessment.
23. Turning to the Respondents’ authorities, James Gikonyo v DM (supra) correctly states that a plaintiff bears the burden of proof on a balance of probabilities. That principle was met in this case through medical and oral evidence. The dispute before this Court is not the absence of evidence, but the manner in which it was evaluated.
24. Rosemary Karuti Murithi v Benson Njiru Mutuku & 3 Others (supra) concerned liability and contributory negligence. Liability having been conclusively determined by the trial court and not challenged on appeal, that authority is distinguishable.
25. In Peter Mutinda Wambua v Capture Transport Limited & 2 Others (supra) the court affirmed that damages must be assessed on the basis of the evidence placed before the court. Properly understood, that authority supports rather than undermines the Appellant’s position.
26. Upon a careful consideration of the pleadings, evidence, submissions and all the authorities cited, this Court is satisfied that the learned trial magistrate misdirected herself in law by failing to assess damages after evidence of injury had been tendered. The appropriate appellate remedy is therefore to remit the matter for assessment of quantum.
Disposition
20. In the result, the appeal succeeds to the extent only that the learned trial magistrate erred in law in dismissing the Appellant’s claim on quantum of general damages notwithstanding the evidence on record.
21. Accordingly, it is hereby ordered:
1) The judgment in Nyamira MCCC E126 of 2023 delivered on 27th January 2025, in so far as it dismissed the Appellant’s claim on quantum of general damages, is hereby set aside.
2) The suit is hereby remitted to the Chief Magistrate’s Court at Nyamira for the limited and specific purpose of assessment of general damages only, to be undertaken by the same magistrate who delivered the judgment dated 27th January 2025.
3) For the avoidance of doubt, the finding on liability having been conclusively determined by the trial court and not having been disturbed on appeal, the trial court shall not reopen, revisit or re litigate the issue of liability, and shall confine itself strictly to the assessment of quantum on the basis of the pleadings, evidence and submissions already on record.
4) Each party shall bear its own costs of the appeal