Background
1. This appeal arises from a road traffic accident that occurred on 5th March 2022 along the Thogoto-Mutarakwa Road at Kamangu area. The accident involved the respondent, who was a pedestrian, and motor vehicle registration number KBJ 793C driven by the appellant.
2. By a plaint dated 31st May 2022, the respondent sued the appellant and Wanyoike Gaithuma George, the alleged registered or beneficial owner of the motor vehicle, seeking:
a) General damages for pain, suffering and loss of amenities;
b) Special damages of KShs. 125,950;
c) Loss of earnings from 5th March 2022 to 31st May 2022 at KShs. 1,200 per day;
d) Loss of earning capacity from 1st June 2022;
e) Costs; and Interest.
3. The respondent pleaded that he was lawfully walking along the road when the appellant negligently drove the motor vehicle, lost control, veered onto the pedestrian footpath and knocked him down.
4. The appellant admitted the occurrence of the accident but denied negligence. She attributed the accident to the respondent, contending that he was intoxicated, disorderly and staggering in the middle of the road.
5. After hearing the parties, the trial court apportioned liability equally between the respondent and the appellant at 50:50. It assessed damages as follows:
a) General damages – KShs. 600,000;
b) Special damages – KShs. 125,950;
c) Loss of earnings – Nil; and
d) Loss of earning capacity – Nil.
6. After applying the respondent’s 50% contribution, the amount payable was KShs. 362,975, together with costs and interest.
The appeal and cross-appeal
7. Dissatisfied with that decision, the appellant lodged the present appeal challenging the apportionment of liability, the awards of general and special damages, interest and costs.
8. The appellant’s principal complaint is that the trial magistrate found that the respondent had failed to prove negligence and that the police abstract blamed him, but nevertheless imposed 50% liability upon the appellant.
9. The respondent opposed the appeal and filed a cross-appeal challenging the 50% liability attributed to him. He contends that the trial court wrongly found that he had not disputed being intoxicated and placed undue reliance upon the police abstract.
10. The respondent also challenges the failure to include the doctor’s court-attendance fee as a witness expense.
11. The appeal and cross-appeal were canvassed through written submissions.
Appellant’s submissions
12. The appellant submitted that liability cannot arise without proof of fault. It was argued that once the trial court found that the respondent had failed to prove negligence, it ought to have dismissed the suit instead of apportioning liability equally.
13. The appellant relied on East Produce (K) Limited v Christopher Astiado Osiro, Civil Appeal No. 43 of 2001 , Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 , and Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & another [2022] KEHC 2664 (KLR) .
14. The appellant further submitted that the awards of general and special damages, interest and costs could not stand in the absence of proved liability. She urged the Court to dismiss both the respondent’s original suit and his cross-appeal.
Respondent’s submissions
15. The respondent submitted that the trial magistrate misapprehended his evidence by finding that he did not dispute being drunk. He pointed out that he expressly denied intoxication during cross-examination and re-examination.
16. He further submitted that the police abstract could not prove how the accident occurred because the police officer who produced it was neither an eyewitness nor the investigating officer. Reliance was placed on Brian Muthee Mwangi & another v Mary Wambui Munyi & 3 others, HCCA Nos. E206 and E208 of 2022 .
17. The respondent urged the Court to allow the cross-appeal and find the appellant wholly liable. He also maintained that the special damages had been pleaded and proved.
18. On witness expenses, the respondent relied on Joseph Mbiria v Jamlick Fredrick Kirimi, HCCC No. 866 of 2001 , for the proposition that a doctor’s attendance fee is recoverable as a witness expense rather than special damages.
Issues for determination
19. Having considered the record, the grounds of appeal and cross-appeal, and the parties’ submissions, the issues for determination are:
a) Whether the trial court erred in apportioning liability at 50:50;
b) Whether the respondent proved that the appellant was wholly liable;
c) Whether the awards of general and special damages should be disturbed;
d) Whether the claim concerning witness expenses is properly before this Court; and
e) Who should bear the costs.
Duty of a first appellate court
20. As a first appellate court, this Court is required to reconsider and re-evaluate the entire evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 .
21. An appellate court is not bound by a trial court’s findings where it is demonstrated that the court failed to consider material circumstances, misapprehended the evidence or reached a conclusion inconsistent with the evidence as a whole. See Ephantus Mwangi & another v Duncan Mwangi Wambugu [1982-1988] 1 KAR 278 .
Evidence on liability
22. The respondent testified that he was walking home along the footpath when the appellant’s vehicle veered from the road and struck him from behind. He denied being drunk at the time of the accident.
23. PW2, No. 88387 PC Rider Kiboi Ibrahim of Kikuyu Traffic Base, produced the police abstract. He stated that the abstract blamed the pedestrian.
24. PW2, however, conceded that he was not the investigating officer and had not witnessed the accident. He did not have the Occurrence Book, police file, incident report, covering report or sketch plan. He could not explain the basis upon which the pedestrian had been blamed.
25. The appellant testified that the respondent was intoxicated and staggering in the middle of the road. She stated that there were two pedestrians at the scene but the other pedestrian was not called as a witness.
26. The appellant conceded that she did not have any toxicological report showing whether the respondent was intoxicated or the level of intoxication. She nevertheless stated that the treatment notes contained an observation by a medical officer regarding drunkenness.
Whether intoxication was proved
27. The trial magistrate stated that the respondent had not disputed being drunk. That finding was factually incorrect.
28. During cross-examination, the respondent stated that he was not a drunkard, although he occasionally consumed alcohol. In re-examination, he expressly stated that he was not drunk at the time of the accident.
29. No blood-alcohol test, breathalyser result or toxicological report was produced. The medical officer who allegedly made an observation regarding drunkenness in the treatment notes did not testify about it.
30. PW1, Dr George Kung’u Mwaura, examined the respondent approximately two months after the accident. His evidence concerned the fracture of the right proximal humerus, treatment, permanent incapacity and future removal of the metal implants. He did not testify that the respondent was intoxicated at the time of the accident.
31. Even if the treatment notes contained an observation suggesting that the respondent had consumed alcohol, consumption of alcohol would not, without more, establish that he was impaired, staggering in the roadway or that his conduct caused the accident.
32. No independent eyewitness corroborated the appellant’s allegation. The second pedestrian whom the appellant said was present was not called. PW2 did not testify that the respondent was drunk or staggering.
33. I therefore find that the allegation that the respondent was intoxicated and staggering in the middle of the road was not independently proved. The trial court erred in treating intoxication as an undisputed fact.
Evidential value of the police abstract
34. The police abstract confirmed that an accident had been reported and that the respondent was recorded as the pedestrian blamed. It did not, by itself, prove how the collision occurred.
35. PW2 could not explain the evidential basis for the conclusion recorded in the abstract. He had neither investigated the accident nor examined the underlying police records.
36. In Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR , the court observed that a police abstract is evidence that an accident was reported at a police station but is not, without more, conclusive proof of the occurrence or manner of the accident.
37. Similarly, in Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & another [2022] KEHC 2664 (KLR) , the High Court held that a police abstract cannot substitute evidence proving the manner in which an accident occurred or the particulars of negligence pleaded.
38. The trial court therefore placed undue weight upon the indication in the police abstract that the pedestrian was to blame.
Whether equal apportionment was justified
39. Sections 107, 108 and 109 of the Evidence Act place the legal burden of proving negligence upon the party who alleges it. The respondent was therefore required to prove his case on a balance of probabilities.
40. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 , the court held that there is no liability without fault in the Kenyan legal system and that a plaintiff whose claim is founded on negligence must prove some negligence against the defendant.
41. The respondent gave direct evidence that he was on the footpath when he was struck from behind. The appellant gave direct evidence that he encountered the respondent in the roadway. Both witnesses were participants in the accident, but neither account received independent corroboration.
42. The police evidence did not resolve the conflict. There was no sketch plan, scene report, Occurrence Book extract, investigation diary, eyewitness testimony or other objective evidence establishing the point of impact or the parties’ positions immediately before the collision.
40. The trial magistrate’s conclusion that the respondent had failed to prove negligence was inconsistent with the subsequent apportionment of liability. Under section 78 of the Civil Procedure Act, this Court is empowered to re-evaluate the evidence and reach its own findings. It is therefore necessary to determine whether, notwithstanding the trial court’s erroneous reasoning, the ultimate apportionment can be sustained upon the evidence.
41. The occurrence of the accident and the contact between the appellant’s vehicle and the respondent were admitted. Each party attributed the collision to the conduct of the other. On the available evidence, neither account can safely be preferred as more probable.
42. In Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) , the Court of Appeal held that where a collision is established but the evidence presents two conflicting versions and provides no concrete basis for distinguishing the parties’ respective blame, equal apportionment may be appropriate.
43. The Court of Appeal referred with approval to Barclay-Steward Limited & another v Waiyaki [1982-1988] 1 KAR 1118 , where it was held that when the occurrence of a collision is certain but the evidence does not permit the court reasonably to determine which party was to blame, the parties may be held equally responsible.
44. Although Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) and Barclay-Steward Limited & another v Waiyaki [1982-1988] 1 KAR 1118 concerned collisions between motor vehicles, their application is not confined exclusively to motorists. The material principle is that where an accident is proved, the parties involved give directly conflicting accounts, and the available evidence does not permit the court reasonably to distinguish their respective degrees of responsibility, liability may be apportioned equally.
45. In the present case, the accident and contact between the appellant’s vehicle and the respondent were admitted. Each was a road user owing a duty to exercise reasonable care. The respondent testified that he was lawfully walking on the footpath when the vehicle left the roadway and struck him. The appellant testified that the respondent was within the roadway and staggering in the path of the vehicle. Neither account was independently corroborated, and the objective police evidence necessary to establish the point of impact was not produced.
46. The Court is therefore not confronted with a case in which the respondent failed to connect his injuries to the appellant or her vehicle. The collision, injury and involvement of the appellant’s vehicle were established. What remained uncertain was the precise conduct of each party immediately before impact.
47. In those circumstances, outright dismissal would disregard the established occurrence and the reciprocal duties of care owed by the motorist and pedestrian. Conversely, allowing the cross-appeal would impose full liability upon the appellant without sufficient evidence. Equal apportionment is therefore the fair and legally sustainable conclusion.
48. The appellant’s appeal against the apportionment of liability and the respondent’s cross-appeal seeking to place 100% liability upon the appellant must consequently both fail.
General damages
49. The respondent sustained a fracture of the right proximal humerus. The fracture was treated through internal fixation using metal implants. PW1 assessed permanent incapacity of the right upper limb at 10%.
50. The trial court awarded KShs. 600,000 as general damages for pain, suffering and loss of amenities.
51. Although the appellant’s memorandum challenged the award consequentially, her submissions did not demonstrate that KShs. 600,000 was excessive or that the trial magistrate applied a wrong principle.
52. The trial court considered Bernard Muinde Kilonzo v Andrea M. Maiko Mogi & another [2021] eKLR , Peter Namu Njeru v Philemone Mwagoti [2016] eKLR , and Nguku Joseph & another v Gerald Kihiu Maina [2020] eKLR , which involved comparable humerus fractures.
53. The principles governing appellate interference with damages were stated in Kemfro Africa Ltd t/a Meru Express Service & another v A.M. Lubia & another [1982-1988] 1 KAR 727 and Butt v Khan [1981] KLR 349 . An appellate court will intervene only where the trial court considered an irrelevant factor, omitted a relevant factor, applied a wrong principle, or made an award so inordinately high or low as to represent an erroneous estimate.
54. No such error has been established. The award of KShs. 600,000 is therefore upheld.
Special damages
59. The appellant challenged the award of KShs. 125,950 on the ground that special damages were not specifically pleaded and strictly proved.
60. It is settled that special damages must be expressly pleaded and strictly proved. See Hahn v Singh [1985] KLR 716 .
61. The sum of KShs. 125,950 was specifically pleaded in the plaint. The respondent produced the supporting receipts, and the trial court found the pleaded amount proved.
62. The appellant did not identify any particular receipt or item that was inadmissible, unrelated to the accident or otherwise unproved. The general assertion that the claim was not strictly proved is insufficient to warrant appellate interference.
63. The award of KShs. 125,950 as special damages is consequently upheld.
Loss of earnings and earning capacity
64. The trial court rejected the claims for past loss of earnings and diminished earning capacity. The respondent did not challenge those findings in the cross-appeal.
65. Those findings therefore remain undisturbed.
Witness expenses
66. The respondent complained that the doctor’s court-attendance fee was not included in the certificate of costs.
67. In Joseph Mbiria v Jamlick Fredrick Kirimi, HCCC No. 866 of 2001 , the court recognised that a doctor’s fee for attending court is ordinarily in the nature of a witness expense rather than special damages.
68. The allowance or disallowance of a witness expense is, however, a matter to be dealt with during taxation of the party-and-party costs. Any objection to a certificate of costs must be pursued through the procedure governing taxation and cannot properly be determined as part of an appeal against the substantive judgment.
69. That ground of the cross-appeal therefore fails.
Costs
70. Section 27 of the Civil Procedure Act provides that costs are in the discretion of the court, although they ordinarily follow the event.
71. The respondent succeeded in the trial court and was entitled to costs notwithstanding the apportionment of liability. I find no improper exercise of discretion warranting interference with the trial court’s costs order.
72. In the present proceedings, the appellant sought to avoid liability altogether, while the respondent sought to transfer full liability to the appellant. Neither has succeeded. The just order is that each party bears their own costs of the appeal and cross-appeal.
Disposition
73. The Court ultimately makes the following orders:
a) The appellant’s appeal is dismissed.
b) The respondent’s cross-appeal is dismissed.
c) The trial court’s apportionment of liability at 50:50 between the appellant and the respondent is upheld.
d) The awards of KShs. 600,000 as general damages and KShs. 125,950 as special damages are upheld.
e) After applying the respondent’s 50% contributory negligence, the net award remains KShs. 362,975.
f) The trial court’s orders on interest and costs are upheld.
g) Each party shall bear their own costs of the appeal and cross-appeal.
It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE
In the presence of: -
Mr. Omuga for the Appellant.
Mr. Mwangi for the Respondent.
Court Assistant- Mr. Kibet.
2 | Page KIAMBU CIVIL APPEAL NO.E156 OF 2024
1. This appeal arises from a road traffic accident that occurred on 5th March 2022 along the Thogoto-Mutarakwa Road at Kamangu area. The accident involved the respondent, who was a pedestrian, and motor vehicle registration number KBJ 793C driven by the appellant.
2. By a plaint dated 31st May 2022, the respondent sued the appellant and Wanyoike Gaithuma George, the alleged registered or beneficial owner of the motor vehicle, seeking:
a) General damages for pain, suffering and loss of amenities;
b) Special damages of KShs. 125,950;
c) Loss of earnings from 5th March 2022 to 31st May 2022 at KShs. 1,200 per day;
d) Loss of earning capacity from 1st June 2022;
e) Costs; and Interest.
3. The respondent pleaded that he was lawfully walking along the road when the appellant negligently drove the motor vehicle, lost control, veered onto the pedestrian footpath and knocked him down.
4. The appellant admitted the occurrence of the accident but denied negligence. She attributed the accident to the respondent, contending that he was intoxicated, disorderly and staggering in the middle of the road.
5. After hearing the parties, the trial court apportioned liability equally between the respondent and the appellant at 50:50. It assessed damages as follows:
a) General damages – KShs. 600,000;
b) Special damages – KShs. 125,950;
c) Loss of earnings – Nil; and
d) Loss of earning capacity – Nil.
6. After applying the respondent’s 50% contribution, the amount payable was KShs. 362,975, together with costs and interest.
The appeal and cross-appeal
7. Dissatisfied with that decision, the appellant lodged the present appeal challenging the apportionment of liability, the awards of general and special damages, interest and costs.
8. The appellant’s principal complaint is that the trial magistrate found that the respondent had failed to prove negligence and that the police abstract blamed him, but nevertheless imposed 50% liability upon the appellant.
9. The respondent opposed the appeal and filed a cross-appeal challenging the 50% liability attributed to him. He contends that the trial court wrongly found that he had not disputed being intoxicated and placed undue reliance upon the police abstract.
10. The respondent also challenges the failure to include the doctor’s court-attendance fee as a witness expense.
11. The appeal and cross-appeal were canvassed through written submissions.
Appellant’s submissions
12. The appellant submitted that liability cannot arise without proof of fault. It was argued that once the trial court found that the respondent had failed to prove negligence, it ought to have dismissed the suit instead of apportioning liability equally.
13. The appellant relied on East Produce (K) Limited v Christopher Astiado Osiro, Civil Appeal No. 43 of 2001 , Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 , and Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & another [2022] KEHC 2664 (KLR) .
14. The appellant further submitted that the awards of general and special damages, interest and costs could not stand in the absence of proved liability. She urged the Court to dismiss both the respondent’s original suit and his cross-appeal.
Respondent’s submissions
15. The respondent submitted that the trial magistrate misapprehended his evidence by finding that he did not dispute being drunk. He pointed out that he expressly denied intoxication during cross-examination and re-examination.
16. He further submitted that the police abstract could not prove how the accident occurred because the police officer who produced it was neither an eyewitness nor the investigating officer. Reliance was placed on Brian Muthee Mwangi & another v Mary Wambui Munyi & 3 others, HCCA Nos. E206 and E208 of 2022 .
17. The respondent urged the Court to allow the cross-appeal and find the appellant wholly liable. He also maintained that the special damages had been pleaded and proved.
18. On witness expenses, the respondent relied on Joseph Mbiria v Jamlick Fredrick Kirimi, HCCC No. 866 of 2001 , for the proposition that a doctor’s attendance fee is recoverable as a witness expense rather than special damages.
Issues for determination
19. Having considered the record, the grounds of appeal and cross-appeal, and the parties’ submissions, the issues for determination are:
a) Whether the trial court erred in apportioning liability at 50:50;
b) Whether the respondent proved that the appellant was wholly liable;
c) Whether the awards of general and special damages should be disturbed;
d) Whether the claim concerning witness expenses is properly before this Court; and
e) Who should bear the costs.
Duty of a first appellate court
20. As a first appellate court, this Court is required to reconsider and re-evaluate the entire evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 .
21. An appellate court is not bound by a trial court’s findings where it is demonstrated that the court failed to consider material circumstances, misapprehended the evidence or reached a conclusion inconsistent with the evidence as a whole. See Ephantus Mwangi & another v Duncan Mwangi Wambugu [1982-1988] 1 KAR 278 .
Evidence on liability
22. The respondent testified that he was walking home along the footpath when the appellant’s vehicle veered from the road and struck him from behind. He denied being drunk at the time of the accident.
23. PW2, No. 88387 PC Rider Kiboi Ibrahim of Kikuyu Traffic Base, produced the police abstract. He stated that the abstract blamed the pedestrian.
24. PW2, however, conceded that he was not the investigating officer and had not witnessed the accident. He did not have the Occurrence Book, police file, incident report, covering report or sketch plan. He could not explain the basis upon which the pedestrian had been blamed.
25. The appellant testified that the respondent was intoxicated and staggering in the middle of the road. She stated that there were two pedestrians at the scene but the other pedestrian was not called as a witness.
26. The appellant conceded that she did not have any toxicological report showing whether the respondent was intoxicated or the level of intoxication. She nevertheless stated that the treatment notes contained an observation by a medical officer regarding drunkenness.
Whether intoxication was proved
27. The trial magistrate stated that the respondent had not disputed being drunk. That finding was factually incorrect.
28. During cross-examination, the respondent stated that he was not a drunkard, although he occasionally consumed alcohol. In re-examination, he expressly stated that he was not drunk at the time of the accident.
29. No blood-alcohol test, breathalyser result or toxicological report was produced. The medical officer who allegedly made an observation regarding drunkenness in the treatment notes did not testify about it.
30. PW1, Dr George Kung’u Mwaura, examined the respondent approximately two months after the accident. His evidence concerned the fracture of the right proximal humerus, treatment, permanent incapacity and future removal of the metal implants. He did not testify that the respondent was intoxicated at the time of the accident.
31. Even if the treatment notes contained an observation suggesting that the respondent had consumed alcohol, consumption of alcohol would not, without more, establish that he was impaired, staggering in the roadway or that his conduct caused the accident.
32. No independent eyewitness corroborated the appellant’s allegation. The second pedestrian whom the appellant said was present was not called. PW2 did not testify that the respondent was drunk or staggering.
33. I therefore find that the allegation that the respondent was intoxicated and staggering in the middle of the road was not independently proved. The trial court erred in treating intoxication as an undisputed fact.
Evidential value of the police abstract
34. The police abstract confirmed that an accident had been reported and that the respondent was recorded as the pedestrian blamed. It did not, by itself, prove how the collision occurred.
35. PW2 could not explain the evidential basis for the conclusion recorded in the abstract. He had neither investigated the accident nor examined the underlying police records.
36. In Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR , the court observed that a police abstract is evidence that an accident was reported at a police station but is not, without more, conclusive proof of the occurrence or manner of the accident.
37. Similarly, in Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & another [2022] KEHC 2664 (KLR) , the High Court held that a police abstract cannot substitute evidence proving the manner in which an accident occurred or the particulars of negligence pleaded.
38. The trial court therefore placed undue weight upon the indication in the police abstract that the pedestrian was to blame.
Whether equal apportionment was justified
39. Sections 107, 108 and 109 of the Evidence Act place the legal burden of proving negligence upon the party who alleges it. The respondent was therefore required to prove his case on a balance of probabilities.
40. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 , the court held that there is no liability without fault in the Kenyan legal system and that a plaintiff whose claim is founded on negligence must prove some negligence against the defendant.
41. The respondent gave direct evidence that he was on the footpath when he was struck from behind. The appellant gave direct evidence that he encountered the respondent in the roadway. Both witnesses were participants in the accident, but neither account received independent corroboration.
42. The police evidence did not resolve the conflict. There was no sketch plan, scene report, Occurrence Book extract, investigation diary, eyewitness testimony or other objective evidence establishing the point of impact or the parties’ positions immediately before the collision.
40. The trial magistrate’s conclusion that the respondent had failed to prove negligence was inconsistent with the subsequent apportionment of liability. Under section 78 of the Civil Procedure Act, this Court is empowered to re-evaluate the evidence and reach its own findings. It is therefore necessary to determine whether, notwithstanding the trial court’s erroneous reasoning, the ultimate apportionment can be sustained upon the evidence.
41. The occurrence of the accident and the contact between the appellant’s vehicle and the respondent were admitted. Each party attributed the collision to the conduct of the other. On the available evidence, neither account can safely be preferred as more probable.
42. In Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) , the Court of Appeal held that where a collision is established but the evidence presents two conflicting versions and provides no concrete basis for distinguishing the parties’ respective blame, equal apportionment may be appropriate.
43. The Court of Appeal referred with approval to Barclay-Steward Limited & another v Waiyaki [1982-1988] 1 KAR 1118 , where it was held that when the occurrence of a collision is certain but the evidence does not permit the court reasonably to determine which party was to blame, the parties may be held equally responsible.
44. Although Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) and Barclay-Steward Limited & another v Waiyaki [1982-1988] 1 KAR 1118 concerned collisions between motor vehicles, their application is not confined exclusively to motorists. The material principle is that where an accident is proved, the parties involved give directly conflicting accounts, and the available evidence does not permit the court reasonably to distinguish their respective degrees of responsibility, liability may be apportioned equally.
45. In the present case, the accident and contact between the appellant’s vehicle and the respondent were admitted. Each was a road user owing a duty to exercise reasonable care. The respondent testified that he was lawfully walking on the footpath when the vehicle left the roadway and struck him. The appellant testified that the respondent was within the roadway and staggering in the path of the vehicle. Neither account was independently corroborated, and the objective police evidence necessary to establish the point of impact was not produced.
46. The Court is therefore not confronted with a case in which the respondent failed to connect his injuries to the appellant or her vehicle. The collision, injury and involvement of the appellant’s vehicle were established. What remained uncertain was the precise conduct of each party immediately before impact.
47. In those circumstances, outright dismissal would disregard the established occurrence and the reciprocal duties of care owed by the motorist and pedestrian. Conversely, allowing the cross-appeal would impose full liability upon the appellant without sufficient evidence. Equal apportionment is therefore the fair and legally sustainable conclusion.
48. The appellant’s appeal against the apportionment of liability and the respondent’s cross-appeal seeking to place 100% liability upon the appellant must consequently both fail.
General damages
49. The respondent sustained a fracture of the right proximal humerus. The fracture was treated through internal fixation using metal implants. PW1 assessed permanent incapacity of the right upper limb at 10%.
50. The trial court awarded KShs. 600,000 as general damages for pain, suffering and loss of amenities.
51. Although the appellant’s memorandum challenged the award consequentially, her submissions did not demonstrate that KShs. 600,000 was excessive or that the trial magistrate applied a wrong principle.
52. The trial court considered Bernard Muinde Kilonzo v Andrea M. Maiko Mogi & another [2021] eKLR , Peter Namu Njeru v Philemone Mwagoti [2016] eKLR , and Nguku Joseph & another v Gerald Kihiu Maina [2020] eKLR , which involved comparable humerus fractures.
53. The principles governing appellate interference with damages were stated in Kemfro Africa Ltd t/a Meru Express Service & another v A.M. Lubia & another [1982-1988] 1 KAR 727 and Butt v Khan [1981] KLR 349 . An appellate court will intervene only where the trial court considered an irrelevant factor, omitted a relevant factor, applied a wrong principle, or made an award so inordinately high or low as to represent an erroneous estimate.
54. No such error has been established. The award of KShs. 600,000 is therefore upheld.
Special damages
59. The appellant challenged the award of KShs. 125,950 on the ground that special damages were not specifically pleaded and strictly proved.
60. It is settled that special damages must be expressly pleaded and strictly proved. See Hahn v Singh [1985] KLR 716 .
61. The sum of KShs. 125,950 was specifically pleaded in the plaint. The respondent produced the supporting receipts, and the trial court found the pleaded amount proved.
62. The appellant did not identify any particular receipt or item that was inadmissible, unrelated to the accident or otherwise unproved. The general assertion that the claim was not strictly proved is insufficient to warrant appellate interference.
63. The award of KShs. 125,950 as special damages is consequently upheld.
Loss of earnings and earning capacity
64. The trial court rejected the claims for past loss of earnings and diminished earning capacity. The respondent did not challenge those findings in the cross-appeal.
65. Those findings therefore remain undisturbed.
Witness expenses
66. The respondent complained that the doctor’s court-attendance fee was not included in the certificate of costs.
67. In Joseph Mbiria v Jamlick Fredrick Kirimi, HCCC No. 866 of 2001 , the court recognised that a doctor’s fee for attending court is ordinarily in the nature of a witness expense rather than special damages.
68. The allowance or disallowance of a witness expense is, however, a matter to be dealt with during taxation of the party-and-party costs. Any objection to a certificate of costs must be pursued through the procedure governing taxation and cannot properly be determined as part of an appeal against the substantive judgment.
69. That ground of the cross-appeal therefore fails.
Costs
70. Section 27 of the Civil Procedure Act provides that costs are in the discretion of the court, although they ordinarily follow the event.
71. The respondent succeeded in the trial court and was entitled to costs notwithstanding the apportionment of liability. I find no improper exercise of discretion warranting interference with the trial court’s costs order.
72. In the present proceedings, the appellant sought to avoid liability altogether, while the respondent sought to transfer full liability to the appellant. Neither has succeeded. The just order is that each party bears their own costs of the appeal and cross-appeal.
Disposition
73. The Court ultimately makes the following orders:
a) The appellant’s appeal is dismissed.
b) The respondent’s cross-appeal is dismissed.
c) The trial court’s apportionment of liability at 50:50 between the appellant and the respondent is upheld.
d) The awards of KShs. 600,000 as general damages and KShs. 125,950 as special damages are upheld.
e) After applying the respondent’s 50% contributory negligence, the net award remains KShs. 362,975.
f) The trial court’s orders on interest and costs are upheld.
g) Each party shall bear their own costs of the appeal and cross-appeal.
It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE
In the presence of: -
Mr. Omuga for the Appellant.
Mr. Mwangi for the Respondent.
Court Assistant- Mr. Kibet.
2 | Page KIAMBU CIVIL APPEAL NO.E156 OF 2024