Introduction
1. This is an appeal arising from the judgment of the Chief Magistrate’s Court at Kisumu in Civil Suit No. 553 of 2021 delivered on 9th May 2023, in which the learned trial court entered judgment as follows: -
i. Liability apportioned at 50:50
ii. General damages for pain and suffering: Kshs. 700,000
iii. Special damages: Kshs. 15,000
2. The background of the case is that the appellant, a motorcyclist, instituted the primary suit seeking general and special damages for severe injuries sustained in a road traffic accident which occurred on 6th April 2021 along Kisumu – Busia Road at Tiengre area, involving the appellant's motorcycle KMDB 584Y Boxer and the respondent's motor vehicle KCC 162Y Mitsubishi Lorry.
3. The appellant testified and called a doctor and a police officer. The respondent did not call any witnesses.
4. In the lower court, the appellant pleaded and testified that the lorry hit him from behind while he was riding on the extreme verge of the road, wearing a helmet and reflector jacket, and there was no oncoming traffic.
5. The respondents did not call any witnesses in the trial court. However, a second medical report prepared by Dr. Oketch was produced by consent.
6. The trial magistrate apportioned liability equally between the parties and awarded damages as indicated above.
The Appeal
7. Dissatisfied, the appellant lodged this appeal, raising several grounds of appeal, key among them being that: -
i. The learned trial magistrate erred in law and in fact in finding the appellant 50% liable for the accident.
ii. The learned trial magistrate erred in law and in fact in making an award for general damages of Kshs. 700,000/- that was too low in view of the injuries sustained by the appellant.
iii. The learned trial magistrate erred in law and in fact in failing to consider submissions of the appellant, thereby arriving at an erroneous and low award for general and special damages.
8. The appeal was canvassed by way of written submissions. The appellant filed his submissions dated 4th November 2024 whilst the 1st and 2nd Respondents filed a joint submission dated 11th September 2024.
The Appellant’s submissions
9. The appellant argued that the trial magistrate erred in apportioning liability 50:50, with his primary contention being that the respondent's driver was entirely to blame for the accident as he was hit from behind. The appellant asserted he was riding on the extreme verge of the road, giving ample room, and there was no oncoming traffic.
10. Relying on the testimony of PW1, the investigating officer, PC Wesley Menza, who stated that the respondent's driver failed to keep a safe distance, the appellant (PW2) maintained he was hit from behind and was not moving in a zig-zag motion.
11. According to the appellant, his testimony at trial remained uncontroverted since the Respondent did not call any witnesses to rebut this evidence.
12. The appellant further submitted that a motor vehicle, being a more lethal weapon than a motorcycle, places a higher duty of care on its driver. Several cases, such as Margaret Wangari Kiambuthi -vs- Jane Njeri Ngugi & Another [2018] eKLR and Francis K. Righa -vs- Mary Njeri [2014] eKLR, were cited by the appellant to support this principle.
13. The appellant submitted that there was misapprehension by the trial court of the pleadings and evidence. The appellant pointed out that the trial court erroneously stated that the appellant was a passenger and that four witnesses were called, when in fact the appellant was a rider and only two witnesses testified.
14. Finally, the appellant challenged the trial court's insistence on the production of a sketch map and plans, arguing that such documents would only be mandatory if contradictory facts were presented by the respondent. According to the appellant, being hit from behind, as was the case herein, was on a balance of probabilities, sufficient proof of negligence on the part of the Respondent.
15. On quantum, the appellant argued that the award of KShs. 700,000/- for general damages was too low given the severity and multiplicity of injuries sustained. The appellant listed numerous severe injuries which included: Head injury with swelling on the base of the skull; Head trauma; Traumatic brain injury; Neck tenderness; Left eye orbital emphysema; Cut wounds on head and hands; Loss of speech (fortunately not permanent); Swollen left chest clavicle; Fracture of the left 6th rib axillary line; Fracture of the left zygomatic arch and fracture of the lateral wall of maxillary sinus; Fracture of the left mastoid portion of temporal bone; Left medial pterygoid plate fracture; Comminuted fracture, lateral third of the right clavicle; Mid shaft clavicle fracture, and Inferior displacement of right clavicle.
16. The appellant pointed out that Dr. Neema, an orthopedic surgeon, assessed a 25% disability and noted ongoing issues like lumbar spondylosis and the 6th rib fracture bite. The appellant dismisses Dr. Oketch's report as not impartial, alleging it deliberately omitted many serious injuries, despite reviewing radiological reports.
17. The appellant therefore proposed KShs. 4,000,000/- as sufficient compensation and cited comparable authorities such as James Thiongo Githiri v Nduati Njuguna Ngugi [2021] eKLR, Duncan Kimathi Karagania v Ngugi David & 2 Others [2016] eKLR, Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR, and Samwel Kebati Osoro v Mohamed Antuly & Another [2019] eKLR, all awarding KShs. 4,000,000/- for severe and multiple fractures.
18. Regarding the cost for future medical expenses, the appellant argued that the trial court erroneously disregarded the claim despite Dr. Neema's assessment of a 25% disability and her recommendation for psychological intervention and occupational therapy to address ongoing complaints. The appellant criticizes Dr. Oketch for not evaluating memory and amnesia complaints and for not examining the appellant's spine, where spondylosis was noted by Dr. Neema.
Respondents’ submissions
19. The respondents on their part supported the trial court's finding of 50:50 liability. The respondent argues that the appellant failed to discharge the burden of proof to show that the respondent was entirely liable in negligence. The respondent emphasizes that "he who alleges must prove."
20. The respondents challenged the weight of the police officer's testimony (PW1 and PW2), asserting that PW1 did not witness the accident and relied on hearsay. The respondent cites David Kajogi M'mugaa v Francis Muthomi [2012] eKLR and Antony Musita & Another vs. Purity Gatakaa & 2 others HCCA No. 2 of 2009 (Meru), which held that an investigating officer's evidence, if not a direct witness, cannot conclusively prove how an accident happened and is mere opinion. The respondent argued that without independent corroborating evidence, the appellant's case on liability was not sufficiently proven.
21. Citing Mercv Ben & another v Mt Kenya Distributors & another [2022] eKLR the respondent contended that since there was no evidence to establish who carried the larger degree of blame, apportioning blame equally between the parties was justified.
22. On the general damages awarded, the respondent submitted that the Kshs. 700,000/- awarded by the trial magistrate is commensurate with the actual injuries sustained. According to the respondent, while the plaint listed extensive injuries, the medical reports of Dr. Neema and Dr. Oketch only consistently agreed on injuries on: Base of skull fracture; Right temporal hemorrhagic contusion; Mid shaft clavicle fracture, and 6th rib fracture.
23. The respondent emphasized that Dr. Oketch, who examined the appellant almost a year after the accident, concluded that the appellant had healed well with no resultant permanent incapacity. The respondent cited Joseph Kimanthi Nzau vs. Johnson Macharia [2019] eKLR where KShs. 800,000/- was awarded for a fracture of the skull, right clavicle, left 1st and 2nd ribs, and multiple soft tissue injuries.
24. Finally, on the cost of future medical expenses, the Respondent submitted that Dr. Oketch's report concluded that the appellant had healed well with no permanent incapacitation. The respondent cited the cases of Michikuru Tea Co. Ltd v David Nchubiri Akwalu [2017] eKLR and Wabwire & another v Mwanga_nga [2023] KEHC 22229 (KLR) to support the argument that future medical expenses should not be awarded if not proven necessary or if highly speculative.
Analysis and Determination
25. Having carefully considered the submissions, I find that the appeal raises the following issues requiring this Court’s determination: -
i. Whether the trial court erred in apportioning liability at 50:50.
ii. Whether the award of Kshs. 700,000 as general damages was inordinately low.
iii. Whether the trial court erred in failing to award future medical expenses.
On the apportionment of Liability
26. The appellant faulted the trial court for finding him 50% liable despite his uncontroverted evidence that the lorry hit his motorcycle from behind.
27. The respondents on the other hand submitted that the burden of proof remained on the appellant, and that the investigating officer’s evidence was hearsay since he did not witness the accident. They rely on Bwire v Wayo & Sailoki [2022] KEHC 7 and David Kajogi M’mugaa v Francis Muthomi [2012] eKLR to argue that police opinion is not binding.
28. It is trite law that that he who alleges must prove. However, the standard of proof in civil cases is on a balance of probabilities. This means that the court must be persuaded that the appellant's version of events is more likely than not to have occurred.
29. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, 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 is case 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.”
30. It follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case.
31. From the proceedings, I note that the Appellant testified that he was riding ahead of the lorry, that he was hit from behind, and that the lorry failed to maintain a safe distance, this testimony was corroborated by the investigating officer, who testified as PW1 and informed the trial court that the lorry failed to keep distance and hit the motorcycle from behind. I also note this testimony was not rebutted by the respondents who called no witness.
32. While the respondent correctly argued that an investigating officer's evidence, if not an eyewitness, can be considered opinion, in this case, the police officer's findings align with the appellant's direct testimony. The absence of the respondent's driver's testimony, who would have had firsthand knowledge of the accident, leaves the appellant's account largely unchallenged.
33. In the absence of evidence to the contrary, the doctrine of res ipsa loquitur and the presumption of negligence in rear-end collisions apply. See Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi [2014] eKLR where the Court stated that: -
‘Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (see Bernard- v -Sully (1931) 47 TLR 557).”
34. Furthermore, the trial court's misapprehension of facts, such as the appellant being a "passenger" and four witnesses being called, demonstrates a fundamental flaw in its evaluation of the evidence presented. This misdirection likely influenced its assessment of liability.
35. The cases cited by the appellant regarding the higher duty of care expected from drivers of more lethal vehicles are persuasive. The driver of a lorry following a motorcycle has a responsibility to maintain a safe distance and take evasive action if necessary. The unchallenged evidence suggests a failure in this regard
36. Nonetheless, as rightly pointed out by the trial court the absence of sketch maps or eyewitnesses weakens the appellant’s case to some extent, particularly in conclusively proving the manner of collision. Given these gaps, contributory negligence cannot be entirely ruled out.
37. In Mercy Ben & Another v Mt Kenya Distributors & Another [2022] eKLR, the court found equal apportionment appropriate where the factual circumstances were unclear. However, in this case, the fact of being hit from behind was consistent and unchallenged, and no evasive action by the lorry driver was shown. On balance, the court finds that the appellant established negligence to a greater degree.
38. Accordingly, I find that the trial court erred in apportioning liability at 50:50, which is hereby set aside, and substituted by a finding of this Court apportioning liability in the ratio of 80:20, with the Respondent bearing the greatest fault.
Quantum
39. The appellant submitted that the award on quantum of damages was inordinately low and did not take into account the injuries sustained by the appellant and below comparable awards and that this court ought to increase the same to Kshs. 4,000,000. The appellant further submitted the cost for future medical expenses ought to be awarded as was prayed.
40. In in Butt v Khan [1982-88] KAR 1 it was held –
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
41. I have duly considered the submissions tendered together with the authorities cited by the parties on this issue.
General damages
42. The principle governing assessment of general damages is that its purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has repeatedly been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation.
43. Further, awards ought to be reasonable and must be assessed with moderation bearing in mind that the large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see Tayab v Kinanu [1983] KLR 114 and West (H) & Son Ltd v Shephard [1964] AC 326, 345).
44. A careful review of the medical report by Dr. Neema, an orthopedic surgeon (Pexh 14), reveals that the examination was done six months after the accident and lists numerous severe injuries, including multiple fractures (7 fractures), traumatic brain injury with right temporal hemorrhage, and loss of speech. She also assessed a 25% disability. The P3 form further assessed the injuries as grievous harm.
45. The medical report by Dr. Oketch, while produced by consent, appears to downplay the extent of injuries. However, the Court takes judicial notice of Dr. Neema's specialized expertise as an orthopedic surgeon in assessing bone injuries, and places more weight on the same.
46. The injuries sustained by the appellant, including multiple fractures, head trauma, and traumatic brain injury, are indeed severe. The cases cited by the appellant for KShs. 4,000,000/- awards involve similar or comparable severe multiple fractures and head injuries. In the case of Duncan Kimathi Karagania v Ngugi David & 2 Others [2016],eKLR, cited by the Appellant, the plaintiff suffered blunt head injury with loss of consciousness, lacerations, comminuted fracture of the maxilla, compound fracture right humerus, and multiple lacerations.
47. Similarly, in Samwel Kebati Osoro v Mohamed Antuly & Another (supra), Kshs. 4,000.000/- was awarded to a plaintiff who had multiple fractures on the right thigh, left ankle, left patella, and mandible, along with de-gloving injuries.
48. While no two cases are identical, the injuries presented by the appellant, particularly the seven fractures and traumatic brain injury with initial loss of speech, fall within the ambit of cases attracting substantially higher awards than KShs. 700,000/-. Further, the injuries case of Joseph Kimanthi Nzau vs. Johnson Macharia [2019] eKLR cited by the Respondent, are obviously less serious to the injuries in the instant case.
49. Accordingly, taking into account the nature and extent of the injuries, the assessed disability, and current inflationary trends, find an award of Kshs. 2,500,000/- (subject to contribution) for general damages would be a fair and reasonable compensation.
Special damages – Cost of Future medical expenses
50. On the cost of future medical expenses, the appellant submitted that the trial court erroneously ignored his claim of Kshs. 100,000 for future therapy as recommended by Dr. Neema. The respondents on the other hand argued none was payable since Dr. Oketch found the appellant fully healed and resumed his business.
51. The Court of Appeal in Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment) in reference to the decision in Tracom Limited & another v Hassan Mohamed Adan (supra) stated as follows:
“As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the respondents did during their testimony………..On the challenge to the award on future medical expenses which the appellant says had not been specifically pleaded and proved, this does not turn on much as the respondent had in their plaint stated that the minor requires additional and medical care. In our view, the functional prosthesis (artificial limbs) and their maintenance costs are covered under that prayer and as held in Tracom Limited & another v Hasssan Mohamed Adan (supra) it was not mandatory for the respondent to delve into detail of the future expenses at that stage thus that ground of appeal fails.”
52. In the present case, the Court notes that unlike Dr. Neema medical report which recommended the need for future medical expenses, the report by Dr. Oketch not justify his findings for the failure to recommend for the cost. Dr. Neema provided a treatment plan including occupational therapy and psychological counseling. Dr. Okech’s observation that the appellant has resumed his business does not automatically negate the need for ongoing therapeutic support to mitigate long-term effects of severe injuries like traumatic brain injury and spondylosis.
53. As held by the Court of Appeal, Tracom Limited & another v Hasssan Mohamed Adan [supra], future medical expenses are the approximate sum of money that the future medical expenses will require. They are not doctor’s fees but a sum total of expenses. Therefore, picking one area of expense and flaunting it as cost of future medical expenses is disingenuous.
54. In the premises, the Court finds that the pleaded claim of Kshs. 100,000/- has been sufficiently proved and justified in the circumstances of this case. The same is therefore allowed in full.
Disposition
55. In view of the foregoing, the appeal succeeds in part. Accordingly, I issue the following orders: -
a. Liability is apportioned at 80% to the respondents and 20% to the appellant.
b. General damages for pain and suffering are assessed at Kshs. 2,500,000, less 20% contribution, resulting in Kshs. 2,000,000.
c. Special damages are confirmed at Kshs. 15,000.
d. Future medical expenses of Kshs. 100,000 are awarded, less 20% contribution, resulting in Kshs. 80,000.
e. Interest on general damages from the date of judgment in the trial court.
f. Interest on special damages and future medical expenses from the date of filing suit.
g. Each party to bear their own costs of this appeal.
56. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
1. This is an appeal arising from the judgment of the Chief Magistrate’s Court at Kisumu in Civil Suit No. 553 of 2021 delivered on 9th May 2023, in which the learned trial court entered judgment as follows: -
i. Liability apportioned at 50:50
ii. General damages for pain and suffering: Kshs. 700,000
iii. Special damages: Kshs. 15,000
2. The background of the case is that the appellant, a motorcyclist, instituted the primary suit seeking general and special damages for severe injuries sustained in a road traffic accident which occurred on 6th April 2021 along Kisumu – Busia Road at Tiengre area, involving the appellant's motorcycle KMDB 584Y Boxer and the respondent's motor vehicle KCC 162Y Mitsubishi Lorry.
3. The appellant testified and called a doctor and a police officer. The respondent did not call any witnesses.
4. In the lower court, the appellant pleaded and testified that the lorry hit him from behind while he was riding on the extreme verge of the road, wearing a helmet and reflector jacket, and there was no oncoming traffic.
5. The respondents did not call any witnesses in the trial court. However, a second medical report prepared by Dr. Oketch was produced by consent.
6. The trial magistrate apportioned liability equally between the parties and awarded damages as indicated above.
The Appeal
7. Dissatisfied, the appellant lodged this appeal, raising several grounds of appeal, key among them being that: -
i. The learned trial magistrate erred in law and in fact in finding the appellant 50% liable for the accident.
ii. The learned trial magistrate erred in law and in fact in making an award for general damages of Kshs. 700,000/- that was too low in view of the injuries sustained by the appellant.
iii. The learned trial magistrate erred in law and in fact in failing to consider submissions of the appellant, thereby arriving at an erroneous and low award for general and special damages.
8. The appeal was canvassed by way of written submissions. The appellant filed his submissions dated 4th November 2024 whilst the 1st and 2nd Respondents filed a joint submission dated 11th September 2024.
The Appellant’s submissions
9. The appellant argued that the trial magistrate erred in apportioning liability 50:50, with his primary contention being that the respondent's driver was entirely to blame for the accident as he was hit from behind. The appellant asserted he was riding on the extreme verge of the road, giving ample room, and there was no oncoming traffic.
10. Relying on the testimony of PW1, the investigating officer, PC Wesley Menza, who stated that the respondent's driver failed to keep a safe distance, the appellant (PW2) maintained he was hit from behind and was not moving in a zig-zag motion.
11. According to the appellant, his testimony at trial remained uncontroverted since the Respondent did not call any witnesses to rebut this evidence.
12. The appellant further submitted that a motor vehicle, being a more lethal weapon than a motorcycle, places a higher duty of care on its driver. Several cases, such as Margaret Wangari Kiambuthi -vs- Jane Njeri Ngugi & Another [2018] eKLR and Francis K. Righa -vs- Mary Njeri [2014] eKLR, were cited by the appellant to support this principle.
13. The appellant submitted that there was misapprehension by the trial court of the pleadings and evidence. The appellant pointed out that the trial court erroneously stated that the appellant was a passenger and that four witnesses were called, when in fact the appellant was a rider and only two witnesses testified.
14. Finally, the appellant challenged the trial court's insistence on the production of a sketch map and plans, arguing that such documents would only be mandatory if contradictory facts were presented by the respondent. According to the appellant, being hit from behind, as was the case herein, was on a balance of probabilities, sufficient proof of negligence on the part of the Respondent.
15. On quantum, the appellant argued that the award of KShs. 700,000/- for general damages was too low given the severity and multiplicity of injuries sustained. The appellant listed numerous severe injuries which included: Head injury with swelling on the base of the skull; Head trauma; Traumatic brain injury; Neck tenderness; Left eye orbital emphysema; Cut wounds on head and hands; Loss of speech (fortunately not permanent); Swollen left chest clavicle; Fracture of the left 6th rib axillary line; Fracture of the left zygomatic arch and fracture of the lateral wall of maxillary sinus; Fracture of the left mastoid portion of temporal bone; Left medial pterygoid plate fracture; Comminuted fracture, lateral third of the right clavicle; Mid shaft clavicle fracture, and Inferior displacement of right clavicle.
16. The appellant pointed out that Dr. Neema, an orthopedic surgeon, assessed a 25% disability and noted ongoing issues like lumbar spondylosis and the 6th rib fracture bite. The appellant dismisses Dr. Oketch's report as not impartial, alleging it deliberately omitted many serious injuries, despite reviewing radiological reports.
17. The appellant therefore proposed KShs. 4,000,000/- as sufficient compensation and cited comparable authorities such as James Thiongo Githiri v Nduati Njuguna Ngugi [2021] eKLR, Duncan Kimathi Karagania v Ngugi David & 2 Others [2016] eKLR, Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR, and Samwel Kebati Osoro v Mohamed Antuly & Another [2019] eKLR, all awarding KShs. 4,000,000/- for severe and multiple fractures.
18. Regarding the cost for future medical expenses, the appellant argued that the trial court erroneously disregarded the claim despite Dr. Neema's assessment of a 25% disability and her recommendation for psychological intervention and occupational therapy to address ongoing complaints. The appellant criticizes Dr. Oketch for not evaluating memory and amnesia complaints and for not examining the appellant's spine, where spondylosis was noted by Dr. Neema.
Respondents’ submissions
19. The respondents on their part supported the trial court's finding of 50:50 liability. The respondent argues that the appellant failed to discharge the burden of proof to show that the respondent was entirely liable in negligence. The respondent emphasizes that "he who alleges must prove."
20. The respondents challenged the weight of the police officer's testimony (PW1 and PW2), asserting that PW1 did not witness the accident and relied on hearsay. The respondent cites David Kajogi M'mugaa v Francis Muthomi [2012] eKLR and Antony Musita & Another vs. Purity Gatakaa & 2 others HCCA No. 2 of 2009 (Meru), which held that an investigating officer's evidence, if not a direct witness, cannot conclusively prove how an accident happened and is mere opinion. The respondent argued that without independent corroborating evidence, the appellant's case on liability was not sufficiently proven.
21. Citing Mercv Ben & another v Mt Kenya Distributors & another [2022] eKLR the respondent contended that since there was no evidence to establish who carried the larger degree of blame, apportioning blame equally between the parties was justified.
22. On the general damages awarded, the respondent submitted that the Kshs. 700,000/- awarded by the trial magistrate is commensurate with the actual injuries sustained. According to the respondent, while the plaint listed extensive injuries, the medical reports of Dr. Neema and Dr. Oketch only consistently agreed on injuries on: Base of skull fracture; Right temporal hemorrhagic contusion; Mid shaft clavicle fracture, and 6th rib fracture.
23. The respondent emphasized that Dr. Oketch, who examined the appellant almost a year after the accident, concluded that the appellant had healed well with no resultant permanent incapacity. The respondent cited Joseph Kimanthi Nzau vs. Johnson Macharia [2019] eKLR where KShs. 800,000/- was awarded for a fracture of the skull, right clavicle, left 1st and 2nd ribs, and multiple soft tissue injuries.
24. Finally, on the cost of future medical expenses, the Respondent submitted that Dr. Oketch's report concluded that the appellant had healed well with no permanent incapacitation. The respondent cited the cases of Michikuru Tea Co. Ltd v David Nchubiri Akwalu [2017] eKLR and Wabwire & another v Mwanga_nga [2023] KEHC 22229 (KLR) to support the argument that future medical expenses should not be awarded if not proven necessary or if highly speculative.
Analysis and Determination
25. Having carefully considered the submissions, I find that the appeal raises the following issues requiring this Court’s determination: -
i. Whether the trial court erred in apportioning liability at 50:50.
ii. Whether the award of Kshs. 700,000 as general damages was inordinately low.
iii. Whether the trial court erred in failing to award future medical expenses.
On the apportionment of Liability
26. The appellant faulted the trial court for finding him 50% liable despite his uncontroverted evidence that the lorry hit his motorcycle from behind.
27. The respondents on the other hand submitted that the burden of proof remained on the appellant, and that the investigating officer’s evidence was hearsay since he did not witness the accident. They rely on Bwire v Wayo & Sailoki [2022] KEHC 7 and David Kajogi M’mugaa v Francis Muthomi [2012] eKLR to argue that police opinion is not binding.
28. It is trite law that that he who alleges must prove. However, the standard of proof in civil cases is on a balance of probabilities. This means that the court must be persuaded that the appellant's version of events is more likely than not to have occurred.
29. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, 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 is case 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.”
30. It follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case.
31. From the proceedings, I note that the Appellant testified that he was riding ahead of the lorry, that he was hit from behind, and that the lorry failed to maintain a safe distance, this testimony was corroborated by the investigating officer, who testified as PW1 and informed the trial court that the lorry failed to keep distance and hit the motorcycle from behind. I also note this testimony was not rebutted by the respondents who called no witness.
32. While the respondent correctly argued that an investigating officer's evidence, if not an eyewitness, can be considered opinion, in this case, the police officer's findings align with the appellant's direct testimony. The absence of the respondent's driver's testimony, who would have had firsthand knowledge of the accident, leaves the appellant's account largely unchallenged.
33. In the absence of evidence to the contrary, the doctrine of res ipsa loquitur and the presumption of negligence in rear-end collisions apply. See Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi [2014] eKLR where the Court stated that: -
‘Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (see Bernard- v -Sully (1931) 47 TLR 557).”
34. Furthermore, the trial court's misapprehension of facts, such as the appellant being a "passenger" and four witnesses being called, demonstrates a fundamental flaw in its evaluation of the evidence presented. This misdirection likely influenced its assessment of liability.
35. The cases cited by the appellant regarding the higher duty of care expected from drivers of more lethal vehicles are persuasive. The driver of a lorry following a motorcycle has a responsibility to maintain a safe distance and take evasive action if necessary. The unchallenged evidence suggests a failure in this regard
36. Nonetheless, as rightly pointed out by the trial court the absence of sketch maps or eyewitnesses weakens the appellant’s case to some extent, particularly in conclusively proving the manner of collision. Given these gaps, contributory negligence cannot be entirely ruled out.
37. In Mercy Ben & Another v Mt Kenya Distributors & Another [2022] eKLR, the court found equal apportionment appropriate where the factual circumstances were unclear. However, in this case, the fact of being hit from behind was consistent and unchallenged, and no evasive action by the lorry driver was shown. On balance, the court finds that the appellant established negligence to a greater degree.
38. Accordingly, I find that the trial court erred in apportioning liability at 50:50, which is hereby set aside, and substituted by a finding of this Court apportioning liability in the ratio of 80:20, with the Respondent bearing the greatest fault.
Quantum
39. The appellant submitted that the award on quantum of damages was inordinately low and did not take into account the injuries sustained by the appellant and below comparable awards and that this court ought to increase the same to Kshs. 4,000,000. The appellant further submitted the cost for future medical expenses ought to be awarded as was prayed.
40. In in Butt v Khan [1982-88] KAR 1 it was held –
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
41. I have duly considered the submissions tendered together with the authorities cited by the parties on this issue.
General damages
42. The principle governing assessment of general damages is that its purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has repeatedly been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation.
43. Further, awards ought to be reasonable and must be assessed with moderation bearing in mind that the large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see Tayab v Kinanu [1983] KLR 114 and West (H) & Son Ltd v Shephard [1964] AC 326, 345).
44. A careful review of the medical report by Dr. Neema, an orthopedic surgeon (Pexh 14), reveals that the examination was done six months after the accident and lists numerous severe injuries, including multiple fractures (7 fractures), traumatic brain injury with right temporal hemorrhage, and loss of speech. She also assessed a 25% disability. The P3 form further assessed the injuries as grievous harm.
45. The medical report by Dr. Oketch, while produced by consent, appears to downplay the extent of injuries. However, the Court takes judicial notice of Dr. Neema's specialized expertise as an orthopedic surgeon in assessing bone injuries, and places more weight on the same.
46. The injuries sustained by the appellant, including multiple fractures, head trauma, and traumatic brain injury, are indeed severe. The cases cited by the appellant for KShs. 4,000,000/- awards involve similar or comparable severe multiple fractures and head injuries. In the case of Duncan Kimathi Karagania v Ngugi David & 2 Others [2016],eKLR, cited by the Appellant, the plaintiff suffered blunt head injury with loss of consciousness, lacerations, comminuted fracture of the maxilla, compound fracture right humerus, and multiple lacerations.
47. Similarly, in Samwel Kebati Osoro v Mohamed Antuly & Another (supra), Kshs. 4,000.000/- was awarded to a plaintiff who had multiple fractures on the right thigh, left ankle, left patella, and mandible, along with de-gloving injuries.
48. While no two cases are identical, the injuries presented by the appellant, particularly the seven fractures and traumatic brain injury with initial loss of speech, fall within the ambit of cases attracting substantially higher awards than KShs. 700,000/-. Further, the injuries case of Joseph Kimanthi Nzau vs. Johnson Macharia [2019] eKLR cited by the Respondent, are obviously less serious to the injuries in the instant case.
49. Accordingly, taking into account the nature and extent of the injuries, the assessed disability, and current inflationary trends, find an award of Kshs. 2,500,000/- (subject to contribution) for general damages would be a fair and reasonable compensation.
Special damages – Cost of Future medical expenses
50. On the cost of future medical expenses, the appellant submitted that the trial court erroneously ignored his claim of Kshs. 100,000 for future therapy as recommended by Dr. Neema. The respondents on the other hand argued none was payable since Dr. Oketch found the appellant fully healed and resumed his business.
51. The Court of Appeal in Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment) in reference to the decision in Tracom Limited & another v Hassan Mohamed Adan (supra) stated as follows:
“As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the respondents did during their testimony………..On the challenge to the award on future medical expenses which the appellant says had not been specifically pleaded and proved, this does not turn on much as the respondent had in their plaint stated that the minor requires additional and medical care. In our view, the functional prosthesis (artificial limbs) and their maintenance costs are covered under that prayer and as held in Tracom Limited & another v Hasssan Mohamed Adan (supra) it was not mandatory for the respondent to delve into detail of the future expenses at that stage thus that ground of appeal fails.”
52. In the present case, the Court notes that unlike Dr. Neema medical report which recommended the need for future medical expenses, the report by Dr. Oketch not justify his findings for the failure to recommend for the cost. Dr. Neema provided a treatment plan including occupational therapy and psychological counseling. Dr. Okech’s observation that the appellant has resumed his business does not automatically negate the need for ongoing therapeutic support to mitigate long-term effects of severe injuries like traumatic brain injury and spondylosis.
53. As held by the Court of Appeal, Tracom Limited & another v Hasssan Mohamed Adan [supra], future medical expenses are the approximate sum of money that the future medical expenses will require. They are not doctor’s fees but a sum total of expenses. Therefore, picking one area of expense and flaunting it as cost of future medical expenses is disingenuous.
54. In the premises, the Court finds that the pleaded claim of Kshs. 100,000/- has been sufficiently proved and justified in the circumstances of this case. The same is therefore allowed in full.
Disposition
55. In view of the foregoing, the appeal succeeds in part. Accordingly, I issue the following orders: -
a. Liability is apportioned at 80% to the respondents and 20% to the appellant.
b. General damages for pain and suffering are assessed at Kshs. 2,500,000, less 20% contribution, resulting in Kshs. 2,000,000.
c. Special damages are confirmed at Kshs. 15,000.
d. Future medical expenses of Kshs. 100,000 are awarded, less 20% contribution, resulting in Kshs. 80,000.
e. Interest on general damages from the date of judgment in the trial court.
f. Interest on special damages and future medical expenses from the date of filing suit.
g. Each party to bear their own costs of this appeal.
56. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE