REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA T KISII
CIVIL APPEAL NO. E215 OF 2024
JANET ABISI SIMON………………………………APPELLANT
VERSUS
SOSPETER NYATUKA OIRA……………………RESPONDENT
(Being an appeal from the judgement and decree of the Magistrate’s Court at Kisii (Hon. Caroline A. Ocharo (CM) dated 14 th October, 2024 in Kisii MCCC No. 611 of 2021)
BETWEEN
SOSPETER NYATUKA OIRA…………………………PLAINTIFF
VERSUS
JANET ABISI SIMON………………………………DEFENDANT
JUDGEMENT
1. The Appeal arises from the judgement and decree of the Hon. Caroline A. Ocharo (CM) dated 14 th October, 2024 in Kisii MCCC No. 611 of 2021 wherein the court entered judgement for the Respondent with liability apportioned at the ratio of 70:30 % in favour of the respondent as against the Appellant. General damages were assessed at Ksh. 1, 000, 000/= subject to the liability ratio and Ksh. 26, 300/= awarded as special damages. The respondent was also awarded costs of the suit and interest .
2. The Appellant was aggrieved by the said judgement and duly filed his memorandum of appeal dated 4 th December, 2024 wherein he raised the following grounds of appeal:
a) That the learned trial magistrate erred in law and in fact by failing to consider the conventional awards for liability and general damages in cases of similar injuries and awarded general damages which was inordinately high.
b) The learned trial magistrate erred in fact and in law by failing to apply the correct legal principles in apportioning liability and awarding general damages for injuries sustained through other acts, which sum was inordinately high.
c) The learned trial magistrate erred in law and in fact, by failing to consider the appellant’s submissions and judicial authorities on liability and general damages and entirely relying on the Respondent’s submissions thereby arriving at an erroneous decision in apportioning liability to the appellant and awarding an inordinately high figure on general damages.
d) The Learned Trial Magistrate erred in law and in fact in failing to pay regard to the Appellant testimony as corroborated by the Respondent that there was a mob at the accident scene who assaulted and inflicted injuries on the Respondent and therefore the injuries suffered by the respondent were because of the mob beating.
e) The learned trial magistrate erred in law and in fact in failing to pay regard to the expert testimony of PW-2, Dr. Mokua Ombati, who testified that the Respondent’s injuries may have been caused by beatings and therefore fully absolving the Appellant from causing injuries to the Respondent.
f) The learned trial magistrate erred in law by failing to pay regard to decisions relied upon in the Appellant’s submissions that were of guidance in the assessement of the amount of general damages that is appropriate and applicable for similar injuries.
g) The learned Trial Magistrate erred in law by failing to consider the evidence before her thoroughly and failing to find that there were glaring loopholes in the respondent’s case.
h) That the learned trial magistrate erred in law and fact in the assessment of general damages thereby giving an award on general damages of Ksh. 726, 300/= that was inordinately high and overly excessive in the circumstances of the case; and
i) That the learned trial magistrate’s judgement consequently occasioned a miscarriage of justice.
BRIEF FACTS
3. By a plaint dated 20 th May, 2021, the Respondent herein filed suit claiming for general and special damages for injuries sustained arising from an alleged road traffic accident that occurred on 26 th April, 2021 involving motor vehicle registration number KCN 141J . The respondent claimed that he was hit by the said motor vehicle belonging to the appellant when he was lawfully walking as a pedestrian along the road at the St. Jude-Capital Hotel roundabout near New Shivling Supermarket area or thereabouts.
4. He blamed the occurrence of the accident in question on the negligence of the appellant and averred that he suffered serious injuries. The particulars of the injuries included;
a) Head injury (blunt trauma to the forehead) with bruises on the face, the parietal and occipital region of the head,
b) Chest contusion,
c) Chest pain on exertion,
d) Bruises on both elbows with tenderness on palpation and reduced range of movement,
e) Fracture of the right tibia/fibula with inability to ambulate, and
f) Tenderness on the hip joint with multiple bruises on the lower limbs bilaterally.
5. The appellant filed her defence on 12 th August 2021 admitting ownership of motor vehicle registration number KCN 141J but denying the occurrence of the accident and attributing the occurrence of the accident, if at all it occurred, on the negligence or contributory negligence of the respondent, among others. She particularized the respondent’s own acts of negligence as :
a) Failure to walk on the pedestrian walkway;
b) Failure to exercise reasonable care expected of a pedestrian in the circumstances;
c) Failure to obey the highway code and
d) Conducting himself in a manner that would cause him personal harm.
APPELLANT’S SUBMISSIONS
6. On the issue of liability Counsel for the appellant submits that this court as a first appellate court is mandated to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it as if the suit is being tried afresh. He relied on the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123.
7. Counsel submits that the trial magistrate held that it was not clear from the evidence to what extent the Respondent suffered injuries upon being hit by the appellant’s motor vehicle, that however, in the apportionment of liability the trial court failed to apply its own independent analysis of the evidence and instead placed reliance on the fact that since the police had intended to prosecute the appellant, then she must have been negligent. Counsel faulted the trial magistrate for assuming that the notice of intention to prosecute was the final position in the case without appreciating that the appellant was not prosecuted. . Reliance was placed on the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR.
8. It was submitted that a correct assessment should have been based on the totality of the evidence on record as to the extent of the injuries suffered by the respondent from being hit by the appellant’s motor vehicle as opposed to having been assaulted by members of the public.
9. Counsel further submitted that the standard of proof required the respondent to establish the allegations on a balance of probabilities, that is, to mean that it was more likely than not that, the appellant was liable for the injuries sustained. Reliance was placed on the case of William Kabogo Gitau v George Thuo & Others KLR 526 .
10. It was submitted that the failure to produce eyewitnesses to the incident severely undermined the credibility and strength of the case. That the police officer who testified as the plaintiff’s witness was not present at the scene and could not provide first hand evidence regarding the events in question and cited the case of Muindu v Kinyanjui & another (Civil Appeal E032 OF 2022) 2024 eKLR.
11. Counsel argues that the police officer’s testimony was that the respondent was only brushed by the appellant’s side mirror which was at the material time was flexible and adjustable on contact with an object and accordingly the injuries sustained by the Respondent was not consistent with the circumstances of the accident.
12. It was also the counsel’s submission that after the incident the respondent aggressively confronted the appellant which led to an altercation and that the respondent was assaulted by a mob that intervened due to his aggressive behaviour. This intervening actions, he argues broke the causal chain between any alleged negligence and the Respondent’s injuries. He cited the case of Statpack Industries v James Mbithi Munyao (2005) eKLR in support of this argument.
13. Further, counsel submits that the Respondent testified that chaos erupted after the incident and that PW3 acknowledged in cross-examination that the injuries alleged to have been suffered could have been because of the beatings, he endured and that this in itself cast doubt about the origin of the respondent’s injuries.
14. Lastly, on liability, counsel submitted that the Respondent was not walking on the designated footpath at the time of the incident, which constituted a breach of his duty of care as a pedestrian. That as a road user the respondent had an obligation to ensure his own safety and to avoid actions that could endanger others.
15. On quantum, counsel submitted that it is an established principle that in the assessment of general damages, comparable injuries should be compensated by comparable awards. The court should consider previous awards in similar cases, current economic conditions and any other relevant factors as guides to ensure fairness and avoid unjustified disparities in compensation. Counsel cited the case of Joseph Kimani Gathaga & Another v Dickson Ndungu Njoroge [2019] eKLR.
16. Counsel cited the case of Atunga v Mugambi (2022) eKLR where the Appellant suffered bruises to the left side of the head and neck, bruises on the upper limbs, cut wound to the right leg, fracture of the left malleoli/ankle and fracture of the tibia and fibula. The appellate court upheld an award of Ksh. 400, 000/= . He also cited the case of Nyambati Nyasvvabu Erick v Toyota Kenya Ltd & 2 others (2019) eKLR and urged this court to substitute the award of the trial court with an award of Ksh. 300, 000/= .
RESPONDENT’S SUBMISSIONS
17. On liability, counsel for the Respondent submits that the trial court correctly evaluated the evidence and arrived at a proper apportionment. That the Appellant admitted in her testimony, that her vehicle's side mirror hit the Respondent, corroborating the Respondent's account, that he was hit from behind while walking beside the road. It is also submitted that PW1, the investigating police officer, also confirmed the occurrence of the accident and blamed the Appellant for negligence. The officer is said to have served the appellant with a Notice of Intended Prosecution (NIP), noting that the Respondent was brushed onto the tarmac road.
18. Further, counsel submits that while the Appellant testified to a subsequent mob assault, and PW2 (the doctor) opined that the injuries could have been caused by beatings, the trial court rightly apportioned liability at 70:30, attributing primary fault to the Appellant's negligence in causing the initial collision, which precipitated the chaos, while accounting for the mob's contribution. This apportionment reflects the evidence that the accident was the proximate cause, with the mob incident as an intervening factor.
19. It was further submitted that Appellant's reliance on Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KLR is misplaced, as the trial court did not treat the NIP as conclusive but weighed it alongside testimonial evidence. Similarly, in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526, the court emphasized proof on a balance of probabilities, which the Respondent met through consistent testimony and documentary evidence. He also argued that the absence of eyewitnesses does not undermine the Respondent's case, as the Appellant's admission and police findings suffice. In Muindu v Kinyanjui & Another (Civil Appeal E032 of 2022) [2024] KEHC (cited by Appellant), a post-accident investigator was not deemed an eyewitness, but here PW1's investigation corroborated the Respondent's version.
20. Counsel further submitted that recent authorities support upholding apportionment unless manifestly erroneous. He cited the case of Mwangi & Another v Oginga (Civil Appeal 88 of 2023) [2025] KEHC 7976 (KLR ), where the court apportioned 50:50 in a pedestrian-vehicle collision where both contributed. He also relied on Otieno v Mega Wholesalers Limited (Civil Appeal E093 of 2023) [2025] KEHC 13569 (KLR ), the court affirmed that apportionment should not be disturbed absent error in principle. He urged that no such error existed here and that the 70:30 ratio is reasonable given the Appellant's primary negligence.
21. On quantum counsel for the respondent submitted that the award is commensurate with the severe injuries suffered. That is blunt trauma to forehead with bruises on face/head, chest contusion and pains, elbow bruises with tenderness/reduced movement, right tibia/fibula fracture, hip tenderness with lower limb bruises which he maintains caused pain, hospitalization, and ongoing issues. He cited the cases of Komu v Ndutu (Civil Appeal E342 of 2023) [2025] KEHC 12800 (KLR ), where Kshs. 700,000/= was awarded for ulna fracture and scarring. He also relied on the cases of Mohamed v HMB (Civil Appeal E004 of 2023) [2025] KEHC 13905 (KLR ), where Kshs. 900,000/= was awarded for skull fracture and Danki Adventures Ltd. V Gitau (Civil Appeal E047 of 2023) KHCC 13468 (KLR) where Kshs. 1,500,000/= was awarded for for multiple fractures and soft tissue injuries. The Appellant's is submitted to have cited cases including Atunga v Mogambi [2022] eKLR where an award of Kshs. 400,000/=) was given involving less severe and fewer injuries without ongoing pain as was the case with the respondent.
ISSUES FOR DETERMINATION
22. From the foregoing, the issues which arise for determination are:
I. Liability
II. Whether the subsequent mob assault on the Respondent constituted a novus actus interveniens breaking the chain of causation between the Appellant's negligence and the injuries pleaded and proved, in whole or in part.
III. Quantum of damages
ANALYSIS AND DETERMINATION
23. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 the 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
24. Similarly in Coghlan vs. Cumberland (1898) 1 Ch. 704, the Court of Appeal (of England) stated as follows -
"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."
I) Liability
25. On liability it is considerable that the Appellant, in her own testimony, admitted that her vehicle made contact with the Respondent, though she attributed it to her side mirror. That admission is corroborated by the evidence of PW1, the investigating officer, who testified that the Appellant reported knocking a pedestrian who was walking on the pavement and he issued a Notice of Intended Prosecution against her. It is further corroborated by the medical evidence establishing that the Respondent was taken to and treated at Kisii Teaching and Referral Hospital shortly after the incident.
26. The trial magistrate's finding on the primary fact of negligent contact was based on the Appellant's own admission, PW1's corroborating testimony, and the medical record which together established the negligent contact directly.
27. The Appellant's submission that the Respondent was not on the designated pedestrian walkway goes to the Respondent’s contribution to the liability. However, the Respondent’s evidence that he was a pedestrian by the side of the road when he was hit from behind is corroborated by PW1, the investigating officer, who testified that the appellant reported that while driving towards St. Jude she hit a pedestrian who was walking on the pavement with the left side mirror.
28. In the circumstances the trial magistrate's finding on the primary fact of negligent contact is accordingly well founded on the evidence and this court declines to disturb it.
29. Having found that the Appellant's negligence remains causally operative, the next issue for determination is whether the trial magistrate correctly apportioned 30% liability for contributory negligence to the Respondent.
30. Section 68(3) of the Traffic Act provides that a failure to observe the Highway Code, while not of itself giving rise to criminal liability, may be relied upon in civil proceedings as tending to establish or negate liability. The evidence that the Respondent may not have been walking strictly on the designated walkway is capable of supporting a finding of contributory negligence, and a 30% apportionment against a pedestrian in such circumstances is not, in this court's view, so manifestly erroneous as to warrant interference bearing in mind that an appellate court will not disturb a trial court's apportionment absent a demonstrable error in principle. In the case of Kenya Power & Lighting Company Ltd v JWK (Suing as father and next-friend of JKW) & another [2023] KEHC 1642 (KLR ) it was held that:
In apportionment of liability, I am guided by the case of Khambi and Another vs. Mahithi and Another [1968] EA 70, where 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.”
31. This court further notes, for completeness, that where damage is caused by the negligent conduct of more than one person, the applicable principle is to compare the relative blameworthiness of each and apportion liability accordingly, rather than to treat any one contributing cause as wholly exculpatory of another. This principle was applied in Mwaka v Karua & another (Civil Case E261 of 2022) [2024] KEMC 29 (KLR) , where the court cited with approval the case of Haji vs. Freight Agencies Ltd [1984] KLR 139, where it was held that “ Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable distribution between them, the blame can be apportioned equally on each…however, in the absence of clear evidence of contribution to the accident, the justice of the case would have been met by apportioning blame equally .” That principle, applied here, supports treating the Appellant's negligence and the Respondent's own conduct as the two relevant contributing causes as between the parties actually before the court, consistent with the trial court's approach.
32. The apportionment of liability at 70:30 was properly arrived at and discloses no error in principle warranting interference
II) Whether the subsequent mob assault on the Respondent constituted a novus actus interveniens breaking the chain of causation between the Appellant's negligence and the injuries pleaded and proved, in whole or in part
33. This issue is properly one of causation specifically whether the mob's intervention severed the causal connection between the Appellant's admitted negligence and the injuries the Respondent proved, such that some or all of those injuries cannot be attributed to the Appellant at all.
34. The applicable test is that an intervening act will only break the chain of causation where it is abnormal and not reasonably foreseeable, judged by the standard of ordinary human experience. In the case of Redemptor Ndunge Ndawa (Suing in his capacity as the Administrator and legal representative of the estate of Christopher Muloki Masila-Deceased v Solomon Gikaru Kariri [2020] KEHC 4041 (KLR) the court held that ordinarily the intervening incident that breaks the chain of causation and constitutes a novus actus interveniens has to be an abnormal one and not one foreseen by the person injuring another. A novus actus interveniens, or nova causa interveniens is an abnormal, intervening act or event, judged according to the standards of general human experience, which serves to break the chain of causation. The court also cited with authority the case of Elijah Ole Kool v George Ikonya Thuo[2001] eKLR , where it it was observed that;
“Although the Plaintiff may be able to trace even a consequential connection between an injury and the negligence of the Defendant, the law does necessarily attach liability to the Defendant who has been negligent. In Walker v. Goe [1859], 4 H. & N. 350, it was held that there can be no liability unless the damage is the “proximate” result of the negligence. It, therefore, remains upon the Plaintiff to prove both that the Defendant was negligent and that his negligence caused or materially contributed to the damage (see Graig v. Grasgaw Corpn. [1919] 35 T.L.R. 214, at p. 215 per LORD BUCKMASTER). The Learned Authors of Volume 28 of HALSBURYS LAWS OF ENGLAND (3rd Edition) say as follows at page 28:
“Negligence is an effective cause of an injury which either is intended, or, judged broadly on common principles, is a direct consequence. When negligence has been established, liability fallows for all the consequences which are in fact the direct outcome of it, whether or not the damage is a consequence that might reasonably be foreseen.”
In other words, causation is a matter of fact to be determined by common sense principles. LORD WRIGHT said as follows in Yorkshire Dale S.S. Co. Ltd. V. Minister of War Transport [1942] A.C. 691, H.L. at p. 706:-
“……the choice of the real or efficient cause from out of the whole complex of the facts must be made by applying common sense standards. Causation is to be understood as a man in the street, and not as either the scientist or the metaphysician, would understand it.
“As LORD DENNING said in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2 C.B. 291 at p. 321; “the efficiency of causes does not depend on their proximity in point of time.” It is enough that the cause forms part of a chain of events which has in fact led to the injury. What cause will be effective? The Learned Authors of HALSBURYS Supra at p. 28 say as follows:-
“In the absence of intervention by voluntary human action the original act is to be regarded as a cause of the injury, provided that its effect is still actively continuing and has not been superseded by some independent natural cause…….……..If in fact the defendant’s neglect of a proper precaution has caused the injury, the court will not enter into hypothetical inquiry to establish whether the Plaintiff’s injury must necessarily have happened with or without the defendant’s negligence.”
In other words, the defendant’s negligent act or omission is the cause of the Plaintiff’s injury unless it is shown that there was some voluntary responsible human intervention in the chain of events between the original negligent act or omission and the Plaintiff’s injury: The inquiry will be whether the injury can be treated as flowing directly or substantially from the negligence.
In The Oropesa [1943] 1 All E.R. 211 at 213 LORD WRIGHT said as follows:-
“Certain well -known formulae are invoked, such as that the chain of causation was broken and there was a novus actus interveniens . These phrases, sanctified as they are by standing authority, only mean that there was not such a direct relationship between the act of negligence and the injury that the one can be treated as flowing directly from the other.”
35. As per the cited authorities the original negligent act continues to be treated as the operative cause of the injury unless superseded by some voluntary human intervention; the court does not undertake a hypothetical inquiry into whether the injury would have occurred regardless.
36. Applying that test, this court finds that the mob assault does not sever the causal chain in its entirety. A collision between a motor vehicle and a pedestrian, followed by a confrontation and the gathering of an agitated crowd, is not so abnormal or unforeseeable an event, in the ordinary experience of Kenyan roads, as to be regarded as an independent, intervening cause divorced from the collision that precipitated it. The chaos, on the Respondent's own evidence, arose immediately out of the accident; it was not an unconnected, freestanding event.
37. This court, however, still has to grapple with the question of whether each injury as pleaded was caused by the negligent action of the appellant. The medical doctor’s evidence who testified as PW2 was that the Respondent's injuries "may have been caused by beatings". This language is equivocal rather than an affirmative medical finding that the beating, rather than the vehicular impact, was the operative cause of any specific injury. Equally, the fracture of the right tibia/fibula which is the most significant injury pleaded is by its nature far more consistent with vehicular impact or a fall occasioned by being struck than with a beating, and neither party's submissions suggest otherwise.
38. On the totality of the evidence as summarized in the record, this court is not satisfied that the Appellant has discharged the burden of showing that the mob assault, rather than her own negligence, was the operative cause of the injuries for which damages were awarded.
III) Quantum of damages
39. On quantum of damages the applicable principle is that comparable injuries should attract comparable awards, and that an appellate court will only interfere with a quantum award where it is so inordinately high or low as to represent a wholly erroneous estimate as was held in Butt v Khan [1977] 1 KAR .
40. The Respondent’s injuries as proved are a tibia/fibula fracture; head and facial bruising; chest contusion, and bilateral limb bruising sit within the range established by Komu v Ndutu (Civil Appeal E342 of 2023) [2025] KEHC 12800 (KLR) (Kshs. 700,000/= for an ulna fracture with scarring) and Mohamed v HMB (Civil Appeal E004 of 2023) [2025] KEHC 13905 (KLR) (Kshs. 900,000/= for skull fractures). The Appellant's principal comparable case, Atunga v Mugambi [2022] eKLR (Kshs. 400,000/=), involved a materially lighter injury profile without the equivalent long-bone fracture at issue here, and is accordingly of limited comparative value. An award of Kshs. 726,300/= by the trial court falls comfortably within the bracket established by the more comparable authorities and does not represent an inordinate or erroneous estimate.
41. The award of general damages in the sum of Kshs. 726,300/= was not inordinately high and falls within the range supported by comparable authority.
42. For the foregoing reasons, the appeal is accordingly dismissed in its entirety, with costs to the Respondent.
43. It is so ordered.
Judgment read, dated, signed and delivered virtually at BUNGOMA this 30 th July, 2026
R. K.Koech
JUDGE
In the presence of;
Mr. Mulaka appearing virtually for the appellant
Ms. Roselyne Makala & Enock, court assistance
No appearance for the respondent.
Stay of execution ordered for 30 days.
FOOTNOTES
[1]
ENDNOTES
[i]
Page 10Page 10 JUDGEMENT KISII HCCA E215 OF 2024
IN THE HIGH COURT OF KENYA T KISII
CIVIL APPEAL NO. E215 OF 2024
JANET ABISI SIMON………………………………APPELLANT
VERSUS
SOSPETER NYATUKA OIRA……………………RESPONDENT
(Being an appeal from the judgement and decree of the Magistrate’s Court at Kisii (Hon. Caroline A. Ocharo (CM) dated 14 th October, 2024 in Kisii MCCC No. 611 of 2021)
BETWEEN
SOSPETER NYATUKA OIRA…………………………PLAINTIFF
VERSUS
JANET ABISI SIMON………………………………DEFENDANT
JUDGEMENT
1. The Appeal arises from the judgement and decree of the Hon. Caroline A. Ocharo (CM) dated 14 th October, 2024 in Kisii MCCC No. 611 of 2021 wherein the court entered judgement for the Respondent with liability apportioned at the ratio of 70:30 % in favour of the respondent as against the Appellant. General damages were assessed at Ksh. 1, 000, 000/= subject to the liability ratio and Ksh. 26, 300/= awarded as special damages. The respondent was also awarded costs of the suit and interest .
2. The Appellant was aggrieved by the said judgement and duly filed his memorandum of appeal dated 4 th December, 2024 wherein he raised the following grounds of appeal:
a) That the learned trial magistrate erred in law and in fact by failing to consider the conventional awards for liability and general damages in cases of similar injuries and awarded general damages which was inordinately high.
b) The learned trial magistrate erred in fact and in law by failing to apply the correct legal principles in apportioning liability and awarding general damages for injuries sustained through other acts, which sum was inordinately high.
c) The learned trial magistrate erred in law and in fact, by failing to consider the appellant’s submissions and judicial authorities on liability and general damages and entirely relying on the Respondent’s submissions thereby arriving at an erroneous decision in apportioning liability to the appellant and awarding an inordinately high figure on general damages.
d) The Learned Trial Magistrate erred in law and in fact in failing to pay regard to the Appellant testimony as corroborated by the Respondent that there was a mob at the accident scene who assaulted and inflicted injuries on the Respondent and therefore the injuries suffered by the respondent were because of the mob beating.
e) The learned trial magistrate erred in law and in fact in failing to pay regard to the expert testimony of PW-2, Dr. Mokua Ombati, who testified that the Respondent’s injuries may have been caused by beatings and therefore fully absolving the Appellant from causing injuries to the Respondent.
f) The learned trial magistrate erred in law by failing to pay regard to decisions relied upon in the Appellant’s submissions that were of guidance in the assessement of the amount of general damages that is appropriate and applicable for similar injuries.
g) The learned Trial Magistrate erred in law by failing to consider the evidence before her thoroughly and failing to find that there were glaring loopholes in the respondent’s case.
h) That the learned trial magistrate erred in law and fact in the assessment of general damages thereby giving an award on general damages of Ksh. 726, 300/= that was inordinately high and overly excessive in the circumstances of the case; and
i) That the learned trial magistrate’s judgement consequently occasioned a miscarriage of justice.
BRIEF FACTS
3. By a plaint dated 20 th May, 2021, the Respondent herein filed suit claiming for general and special damages for injuries sustained arising from an alleged road traffic accident that occurred on 26 th April, 2021 involving motor vehicle registration number KCN 141J . The respondent claimed that he was hit by the said motor vehicle belonging to the appellant when he was lawfully walking as a pedestrian along the road at the St. Jude-Capital Hotel roundabout near New Shivling Supermarket area or thereabouts.
4. He blamed the occurrence of the accident in question on the negligence of the appellant and averred that he suffered serious injuries. The particulars of the injuries included;
a) Head injury (blunt trauma to the forehead) with bruises on the face, the parietal and occipital region of the head,
b) Chest contusion,
c) Chest pain on exertion,
d) Bruises on both elbows with tenderness on palpation and reduced range of movement,
e) Fracture of the right tibia/fibula with inability to ambulate, and
f) Tenderness on the hip joint with multiple bruises on the lower limbs bilaterally.
5. The appellant filed her defence on 12 th August 2021 admitting ownership of motor vehicle registration number KCN 141J but denying the occurrence of the accident and attributing the occurrence of the accident, if at all it occurred, on the negligence or contributory negligence of the respondent, among others. She particularized the respondent’s own acts of negligence as :
a) Failure to walk on the pedestrian walkway;
b) Failure to exercise reasonable care expected of a pedestrian in the circumstances;
c) Failure to obey the highway code and
d) Conducting himself in a manner that would cause him personal harm.
APPELLANT’S SUBMISSIONS
6. On the issue of liability Counsel for the appellant submits that this court as a first appellate court is mandated to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it as if the suit is being tried afresh. He relied on the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123.
7. Counsel submits that the trial magistrate held that it was not clear from the evidence to what extent the Respondent suffered injuries upon being hit by the appellant’s motor vehicle, that however, in the apportionment of liability the trial court failed to apply its own independent analysis of the evidence and instead placed reliance on the fact that since the police had intended to prosecute the appellant, then she must have been negligent. Counsel faulted the trial magistrate for assuming that the notice of intention to prosecute was the final position in the case without appreciating that the appellant was not prosecuted. . Reliance was placed on the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR.
8. It was submitted that a correct assessment should have been based on the totality of the evidence on record as to the extent of the injuries suffered by the respondent from being hit by the appellant’s motor vehicle as opposed to having been assaulted by members of the public.
9. Counsel further submitted that the standard of proof required the respondent to establish the allegations on a balance of probabilities, that is, to mean that it was more likely than not that, the appellant was liable for the injuries sustained. Reliance was placed on the case of William Kabogo Gitau v George Thuo & Others KLR 526 .
10. It was submitted that the failure to produce eyewitnesses to the incident severely undermined the credibility and strength of the case. That the police officer who testified as the plaintiff’s witness was not present at the scene and could not provide first hand evidence regarding the events in question and cited the case of Muindu v Kinyanjui & another (Civil Appeal E032 OF 2022) 2024 eKLR.
11. Counsel argues that the police officer’s testimony was that the respondent was only brushed by the appellant’s side mirror which was at the material time was flexible and adjustable on contact with an object and accordingly the injuries sustained by the Respondent was not consistent with the circumstances of the accident.
12. It was also the counsel’s submission that after the incident the respondent aggressively confronted the appellant which led to an altercation and that the respondent was assaulted by a mob that intervened due to his aggressive behaviour. This intervening actions, he argues broke the causal chain between any alleged negligence and the Respondent’s injuries. He cited the case of Statpack Industries v James Mbithi Munyao (2005) eKLR in support of this argument.
13. Further, counsel submits that the Respondent testified that chaos erupted after the incident and that PW3 acknowledged in cross-examination that the injuries alleged to have been suffered could have been because of the beatings, he endured and that this in itself cast doubt about the origin of the respondent’s injuries.
14. Lastly, on liability, counsel submitted that the Respondent was not walking on the designated footpath at the time of the incident, which constituted a breach of his duty of care as a pedestrian. That as a road user the respondent had an obligation to ensure his own safety and to avoid actions that could endanger others.
15. On quantum, counsel submitted that it is an established principle that in the assessment of general damages, comparable injuries should be compensated by comparable awards. The court should consider previous awards in similar cases, current economic conditions and any other relevant factors as guides to ensure fairness and avoid unjustified disparities in compensation. Counsel cited the case of Joseph Kimani Gathaga & Another v Dickson Ndungu Njoroge [2019] eKLR.
16. Counsel cited the case of Atunga v Mugambi (2022) eKLR where the Appellant suffered bruises to the left side of the head and neck, bruises on the upper limbs, cut wound to the right leg, fracture of the left malleoli/ankle and fracture of the tibia and fibula. The appellate court upheld an award of Ksh. 400, 000/= . He also cited the case of Nyambati Nyasvvabu Erick v Toyota Kenya Ltd & 2 others (2019) eKLR and urged this court to substitute the award of the trial court with an award of Ksh. 300, 000/= .
RESPONDENT’S SUBMISSIONS
17. On liability, counsel for the Respondent submits that the trial court correctly evaluated the evidence and arrived at a proper apportionment. That the Appellant admitted in her testimony, that her vehicle's side mirror hit the Respondent, corroborating the Respondent's account, that he was hit from behind while walking beside the road. It is also submitted that PW1, the investigating police officer, also confirmed the occurrence of the accident and blamed the Appellant for negligence. The officer is said to have served the appellant with a Notice of Intended Prosecution (NIP), noting that the Respondent was brushed onto the tarmac road.
18. Further, counsel submits that while the Appellant testified to a subsequent mob assault, and PW2 (the doctor) opined that the injuries could have been caused by beatings, the trial court rightly apportioned liability at 70:30, attributing primary fault to the Appellant's negligence in causing the initial collision, which precipitated the chaos, while accounting for the mob's contribution. This apportionment reflects the evidence that the accident was the proximate cause, with the mob incident as an intervening factor.
19. It was further submitted that Appellant's reliance on Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KLR is misplaced, as the trial court did not treat the NIP as conclusive but weighed it alongside testimonial evidence. Similarly, in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526, the court emphasized proof on a balance of probabilities, which the Respondent met through consistent testimony and documentary evidence. He also argued that the absence of eyewitnesses does not undermine the Respondent's case, as the Appellant's admission and police findings suffice. In Muindu v Kinyanjui & Another (Civil Appeal E032 of 2022) [2024] KEHC (cited by Appellant), a post-accident investigator was not deemed an eyewitness, but here PW1's investigation corroborated the Respondent's version.
20. Counsel further submitted that recent authorities support upholding apportionment unless manifestly erroneous. He cited the case of Mwangi & Another v Oginga (Civil Appeal 88 of 2023) [2025] KEHC 7976 (KLR ), where the court apportioned 50:50 in a pedestrian-vehicle collision where both contributed. He also relied on Otieno v Mega Wholesalers Limited (Civil Appeal E093 of 2023) [2025] KEHC 13569 (KLR ), the court affirmed that apportionment should not be disturbed absent error in principle. He urged that no such error existed here and that the 70:30 ratio is reasonable given the Appellant's primary negligence.
21. On quantum counsel for the respondent submitted that the award is commensurate with the severe injuries suffered. That is blunt trauma to forehead with bruises on face/head, chest contusion and pains, elbow bruises with tenderness/reduced movement, right tibia/fibula fracture, hip tenderness with lower limb bruises which he maintains caused pain, hospitalization, and ongoing issues. He cited the cases of Komu v Ndutu (Civil Appeal E342 of 2023) [2025] KEHC 12800 (KLR ), where Kshs. 700,000/= was awarded for ulna fracture and scarring. He also relied on the cases of Mohamed v HMB (Civil Appeal E004 of 2023) [2025] KEHC 13905 (KLR ), where Kshs. 900,000/= was awarded for skull fracture and Danki Adventures Ltd. V Gitau (Civil Appeal E047 of 2023) KHCC 13468 (KLR) where Kshs. 1,500,000/= was awarded for for multiple fractures and soft tissue injuries. The Appellant's is submitted to have cited cases including Atunga v Mogambi [2022] eKLR where an award of Kshs. 400,000/=) was given involving less severe and fewer injuries without ongoing pain as was the case with the respondent.
ISSUES FOR DETERMINATION
22. From the foregoing, the issues which arise for determination are:
I. Liability
II. Whether the subsequent mob assault on the Respondent constituted a novus actus interveniens breaking the chain of causation between the Appellant's negligence and the injuries pleaded and proved, in whole or in part.
III. Quantum of damages
ANALYSIS AND DETERMINATION
23. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 the 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
24. Similarly in Coghlan vs. Cumberland (1898) 1 Ch. 704, the Court of Appeal (of England) stated as follows -
"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."
I) Liability
25. On liability it is considerable that the Appellant, in her own testimony, admitted that her vehicle made contact with the Respondent, though she attributed it to her side mirror. That admission is corroborated by the evidence of PW1, the investigating officer, who testified that the Appellant reported knocking a pedestrian who was walking on the pavement and he issued a Notice of Intended Prosecution against her. It is further corroborated by the medical evidence establishing that the Respondent was taken to and treated at Kisii Teaching and Referral Hospital shortly after the incident.
26. The trial magistrate's finding on the primary fact of negligent contact was based on the Appellant's own admission, PW1's corroborating testimony, and the medical record which together established the negligent contact directly.
27. The Appellant's submission that the Respondent was not on the designated pedestrian walkway goes to the Respondent’s contribution to the liability. However, the Respondent’s evidence that he was a pedestrian by the side of the road when he was hit from behind is corroborated by PW1, the investigating officer, who testified that the appellant reported that while driving towards St. Jude she hit a pedestrian who was walking on the pavement with the left side mirror.
28. In the circumstances the trial magistrate's finding on the primary fact of negligent contact is accordingly well founded on the evidence and this court declines to disturb it.
29. Having found that the Appellant's negligence remains causally operative, the next issue for determination is whether the trial magistrate correctly apportioned 30% liability for contributory negligence to the Respondent.
30. Section 68(3) of the Traffic Act provides that a failure to observe the Highway Code, while not of itself giving rise to criminal liability, may be relied upon in civil proceedings as tending to establish or negate liability. The evidence that the Respondent may not have been walking strictly on the designated walkway is capable of supporting a finding of contributory negligence, and a 30% apportionment against a pedestrian in such circumstances is not, in this court's view, so manifestly erroneous as to warrant interference bearing in mind that an appellate court will not disturb a trial court's apportionment absent a demonstrable error in principle. In the case of Kenya Power & Lighting Company Ltd v JWK (Suing as father and next-friend of JKW) & another [2023] KEHC 1642 (KLR ) it was held that:
In apportionment of liability, I am guided by the case of Khambi and Another vs. Mahithi and Another [1968] EA 70, where 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.”
31. This court further notes, for completeness, that where damage is caused by the negligent conduct of more than one person, the applicable principle is to compare the relative blameworthiness of each and apportion liability accordingly, rather than to treat any one contributing cause as wholly exculpatory of another. This principle was applied in Mwaka v Karua & another (Civil Case E261 of 2022) [2024] KEMC 29 (KLR) , where the court cited with approval the case of Haji vs. Freight Agencies Ltd [1984] KLR 139, where it was held that “ Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable distribution between them, the blame can be apportioned equally on each…however, in the absence of clear evidence of contribution to the accident, the justice of the case would have been met by apportioning blame equally .” That principle, applied here, supports treating the Appellant's negligence and the Respondent's own conduct as the two relevant contributing causes as between the parties actually before the court, consistent with the trial court's approach.
32. The apportionment of liability at 70:30 was properly arrived at and discloses no error in principle warranting interference
II) Whether the subsequent mob assault on the Respondent constituted a novus actus interveniens breaking the chain of causation between the Appellant's negligence and the injuries pleaded and proved, in whole or in part
33. This issue is properly one of causation specifically whether the mob's intervention severed the causal connection between the Appellant's admitted negligence and the injuries the Respondent proved, such that some or all of those injuries cannot be attributed to the Appellant at all.
34. The applicable test is that an intervening act will only break the chain of causation where it is abnormal and not reasonably foreseeable, judged by the standard of ordinary human experience. In the case of Redemptor Ndunge Ndawa (Suing in his capacity as the Administrator and legal representative of the estate of Christopher Muloki Masila-Deceased v Solomon Gikaru Kariri [2020] KEHC 4041 (KLR) the court held that ordinarily the intervening incident that breaks the chain of causation and constitutes a novus actus interveniens has to be an abnormal one and not one foreseen by the person injuring another. A novus actus interveniens, or nova causa interveniens is an abnormal, intervening act or event, judged according to the standards of general human experience, which serves to break the chain of causation. The court also cited with authority the case of Elijah Ole Kool v George Ikonya Thuo[2001] eKLR , where it it was observed that;
“Although the Plaintiff may be able to trace even a consequential connection between an injury and the negligence of the Defendant, the law does necessarily attach liability to the Defendant who has been negligent. In Walker v. Goe [1859], 4 H. & N. 350, it was held that there can be no liability unless the damage is the “proximate” result of the negligence. It, therefore, remains upon the Plaintiff to prove both that the Defendant was negligent and that his negligence caused or materially contributed to the damage (see Graig v. Grasgaw Corpn. [1919] 35 T.L.R. 214, at p. 215 per LORD BUCKMASTER). The Learned Authors of Volume 28 of HALSBURYS LAWS OF ENGLAND (3rd Edition) say as follows at page 28:
“Negligence is an effective cause of an injury which either is intended, or, judged broadly on common principles, is a direct consequence. When negligence has been established, liability fallows for all the consequences which are in fact the direct outcome of it, whether or not the damage is a consequence that might reasonably be foreseen.”
In other words, causation is a matter of fact to be determined by common sense principles. LORD WRIGHT said as follows in Yorkshire Dale S.S. Co. Ltd. V. Minister of War Transport [1942] A.C. 691, H.L. at p. 706:-
“……the choice of the real or efficient cause from out of the whole complex of the facts must be made by applying common sense standards. Causation is to be understood as a man in the street, and not as either the scientist or the metaphysician, would understand it.
“As LORD DENNING said in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2 C.B. 291 at p. 321; “the efficiency of causes does not depend on their proximity in point of time.” It is enough that the cause forms part of a chain of events which has in fact led to the injury. What cause will be effective? The Learned Authors of HALSBURYS Supra at p. 28 say as follows:-
“In the absence of intervention by voluntary human action the original act is to be regarded as a cause of the injury, provided that its effect is still actively continuing and has not been superseded by some independent natural cause…….……..If in fact the defendant’s neglect of a proper precaution has caused the injury, the court will not enter into hypothetical inquiry to establish whether the Plaintiff’s injury must necessarily have happened with or without the defendant’s negligence.”
In other words, the defendant’s negligent act or omission is the cause of the Plaintiff’s injury unless it is shown that there was some voluntary responsible human intervention in the chain of events between the original negligent act or omission and the Plaintiff’s injury: The inquiry will be whether the injury can be treated as flowing directly or substantially from the negligence.
In The Oropesa [1943] 1 All E.R. 211 at 213 LORD WRIGHT said as follows:-
“Certain well -known formulae are invoked, such as that the chain of causation was broken and there was a novus actus interveniens . These phrases, sanctified as they are by standing authority, only mean that there was not such a direct relationship between the act of negligence and the injury that the one can be treated as flowing directly from the other.”
35. As per the cited authorities the original negligent act continues to be treated as the operative cause of the injury unless superseded by some voluntary human intervention; the court does not undertake a hypothetical inquiry into whether the injury would have occurred regardless.
36. Applying that test, this court finds that the mob assault does not sever the causal chain in its entirety. A collision between a motor vehicle and a pedestrian, followed by a confrontation and the gathering of an agitated crowd, is not so abnormal or unforeseeable an event, in the ordinary experience of Kenyan roads, as to be regarded as an independent, intervening cause divorced from the collision that precipitated it. The chaos, on the Respondent's own evidence, arose immediately out of the accident; it was not an unconnected, freestanding event.
37. This court, however, still has to grapple with the question of whether each injury as pleaded was caused by the negligent action of the appellant. The medical doctor’s evidence who testified as PW2 was that the Respondent's injuries "may have been caused by beatings". This language is equivocal rather than an affirmative medical finding that the beating, rather than the vehicular impact, was the operative cause of any specific injury. Equally, the fracture of the right tibia/fibula which is the most significant injury pleaded is by its nature far more consistent with vehicular impact or a fall occasioned by being struck than with a beating, and neither party's submissions suggest otherwise.
38. On the totality of the evidence as summarized in the record, this court is not satisfied that the Appellant has discharged the burden of showing that the mob assault, rather than her own negligence, was the operative cause of the injuries for which damages were awarded.
III) Quantum of damages
39. On quantum of damages the applicable principle is that comparable injuries should attract comparable awards, and that an appellate court will only interfere with a quantum award where it is so inordinately high or low as to represent a wholly erroneous estimate as was held in Butt v Khan [1977] 1 KAR .
40. The Respondent’s injuries as proved are a tibia/fibula fracture; head and facial bruising; chest contusion, and bilateral limb bruising sit within the range established by Komu v Ndutu (Civil Appeal E342 of 2023) [2025] KEHC 12800 (KLR) (Kshs. 700,000/= for an ulna fracture with scarring) and Mohamed v HMB (Civil Appeal E004 of 2023) [2025] KEHC 13905 (KLR) (Kshs. 900,000/= for skull fractures). The Appellant's principal comparable case, Atunga v Mugambi [2022] eKLR (Kshs. 400,000/=), involved a materially lighter injury profile without the equivalent long-bone fracture at issue here, and is accordingly of limited comparative value. An award of Kshs. 726,300/= by the trial court falls comfortably within the bracket established by the more comparable authorities and does not represent an inordinate or erroneous estimate.
41. The award of general damages in the sum of Kshs. 726,300/= was not inordinately high and falls within the range supported by comparable authority.
42. For the foregoing reasons, the appeal is accordingly dismissed in its entirety, with costs to the Respondent.
43. It is so ordered.
Judgment read, dated, signed and delivered virtually at BUNGOMA this 30 th July, 2026
R. K.Koech
JUDGE
In the presence of;
Mr. Mulaka appearing virtually for the appellant
Ms. Roselyne Makala & Enock, court assistance
No appearance for the respondent.
Stay of execution ordered for 30 days.
FOOTNOTES
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ENDNOTES
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