(Being an appeal from the judgment and decree of Hon. Z.K. KIBOS(SRM) Nairobi MCCC No. 7878 of 2016).
The appellant, vide a plaint dated 17.11.2016, filed suit against the respondent, being Nairobi MCCC no.7878 of 2016) of even date. The appellant sought for general damages for pain and suffering, special damages of Kshs. 11,265, interest and cost of the suit. The suit was on account of a road traffic accident that occurred on 9.5.2016 involving motor vehicle KBQ 692P owned by the respondent and motor vehicle KBD 642R owned by the appellant. The appellant attributed the occurrence of the accident to the respondent and pleaded particulars of negligence as against the respondent.
The respondent entered appearance and filed his statement of defence dated 4.8.2022 denying the averments in the plaint and put the appellant to strict proof. The matter proceeded for hearing on diverse dates and by a judgment delivered on the 17.2.25, the trial court dismissed the appellant’s case against the respondent. The dismissal gave rise to the appeal.
The appellant, who testified as PW1 stated in evidence that at around 1am on the material date, he was lawfully driving motor vehicle KBD 642R along Eastern bypass near APTC when motor vehicle KBQ 692P collided with his car head-on causing extensive damage. The appellant was injured in the accident. He was treated at Mama Lucy Kibaki hospital and later Kenyatta National hospital. He blamed the driver of motor vehicle KBQ 692P for encroaching into his lane. In cross examination the appellant stated that he blames the driver of motor vehicle KBQ 650 (sic) for causing the accident and the reason was because the driver flashed full lights on his face such that he was blinded by the light hence unable to control his car. He testified that he had to swerve to avoid the accident.
PW2, PC Elvis Nakure, a witness for the appellant testified and produced a police abstract dated 31.5.26. The police abstract indicated that the matter was pending under investigations. The appellant’s own witness testified that his motor vehicle which was coming from Utawala direction heading towards Embakasi had failed to keep to his proper lane and had a head on collision. That both drivers sustained injuries from the accident.
PW3 Dr. Wambugu Mwangi had testified that he did examine the appellant and prepared a medical report. His evidence was that the appellant sustained dislocation of the right hip joint as a result of the accident.
The respondent testified as DW1. His evidence was that on the 9.5.2016, at around 1 am, he was driving his motor vehicle KBQ 692P along Eastern bypass near APTC when motor vehicle KBD 642R was negligently driven or managed that it veered off its lawful lane and collided with his car which was on its lawful lane thus causing extensive damage to his car. That a PC Rachel Lokuton who did investigations concluded that the appellant was to blame. That a police abstract issued to him on 19.5.16 indicated that the appellant was to blame. He did not understand how a second police abstract dated 31.3.2016 was issued to the appellant indicating that the matter was pending under investigation.
The respondent called witness PC Peter Kiogora who testified and produced a police abstract indicating that the appellant was to blame for the accident as he had failed to keep to his proper lane and caused a collision with the respondent’s motor vehicle.
The appellant submitted that the court ought to have apportioned liability equally in the ratio of 50:50. In support of this position, the appellant cited the case of Raymond Mwiraria v Kelvin Omondi Ouda (2024) eKLR where the learned judge apportioned liability in the ratio of 50:50.
The appellant further submitted that the award of Kshs. 350,000 for general damages was inordinately low and should be substituted with one for Kshs. 4,000,000. The appellant cited the case of Michael Maina Gitonga v Serah Njuguna (2021) eKLR where an award of Kshs. 1,500,000 was made for a claimant who had sustained inter alia a dislocation of the right hip, fractures and soft tissue injuries.
The appellant further asked that the court ought to have awarded Kshs. 5,550 as special damages.
The respondent opposed the appeal. The respondent submitted that the learned trial magistrate had the opportunity of listening to the witnesses and that the judgment was informed by the evidence on record. That the appellant failed to tender convincing evidence to prove his case. That the appellant failed to discharge the burden of proof. The respondent cited the case of Hassan and 3 others v Safaricom Ltd & Another (2025) KEELC 8182 (KLR) and the case of Busolo v Gathua (2025) KEHC 16877 (KLR).
The respondent submitted that the trial court could not be faulted for dismissing the case. The award on quantum was within the limits acceptable regard being had to the injuries suffered by the appellant.
ANALYSIS AND DETERMINATION
This being a first appeal, this court has a duty to reevaluate, reassess and reanalyze the extracts of the record and draw its own conclusions. This was buttressed and emphasised by the court of appeal in the case of Odera T/A A.J. Odera & Associates v Machira T/A Machira & Co. Advocates (2013) KECA 208 (KLR) where the court of appeal held:
“This being a first appeal, we are reminded that our primary role as a first appellate court namely, to reevaluate, reassess and reanalyze the extracts of the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
The court should determine whether the learned magistrate erred in law in finding that the appellant had failed to discharge the burden of proof.
It is well settled that the burden of proof in civil cases primarily lies upon the claimant. Sections 107 and 108 of the Evidence Act (Cap 80) stipulates as follows:
‘107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108 The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on either side.’
In this case, while there is no dispute that an accident did occur between a motor vehicle being driven by the appellant and that being driven by the respondent, the burden was on the appellant to present before court cogent and credible evidence that the respondent was culpable for negligence. The appellant’s case was not predicated on the weakness of the respondent’s case and the mere fact that he did not lead sufficient evidence is not good reason to apportion liability in the ratio of 50:50 as suggested by the appellant. The standard of proof was on a balance of probabilities.
Denning J in Miller v Minister of Pensions (1947) 2 All ER 372 while discussing the degree of proof stated thus:
“That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, ‘We think it more probable than not, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
The appellant’s own witness who testified as PW2, other than producing police abstract which indicated that the accident was pending under investigations, did not help his case. The said witness testified that it is the motor vehicle which was being driven by the appellant KBD 642R that failed to keep to its lawful lane and drove onto the path of the respondent’s motor vehicle. The evidence of PW2 actually is in all fours with that of the respondent. The respondent’s evidence which also shows that the appellant while driving motor vehicle KBD 642R veered off its lane and drove onto the path of the respondent’s motor vehicle KBQ 692P, remained unimpeached even during cross examination. This is a classic case where the appellant/claimant failed to prove his case. Incidentally in his evidence in court unlike what was recorded in his written statement, the appellant appeared to suggest that the respondent while driving motor vehicle KBQ 642P flashed full lights on his face and he was blinded and unable to control his car. This piece of evidence shows that the appellant not only changed his evidence as recorded but also shows that he was not keen on the road.
To suggest that because the appellant failed to adduce cogent evidence in proof of his case, the court should apportion liability in the ratio of 50:50 will not only be shifting the burden of proof to the respondent but also adopting a lazy approach to examination of evidence placed before court. I decline that invitation with the result that I find no basis upon which to fault the lower court’s finding on liability. I uphold the finding dismissing the claim on liability.
On quantum, the court of appeal pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd T/A Meru Express Services v A.M. Lubia & Another (1987) KLR 27 as follows:
“The principle to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial judge were held in the court of appeal for the former East Africa to be that it must be satisfied that either the judge in assessing the damages, took into account an irrelevant fact or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”
This court cannot therefore say that had it handled the case before the lower court, it would have awarded a different figure.
The appellant suffered posterior dislocation right hip joint and right leg swelling and pain. He had no fracture and the case law cited by the appellant involved a claimant who had suffered more serious injuries. The learned trial magistrate considered amongst others the case of Kembe v Abiud (2023) KEHC 1673 (KLR). In my assessment he considered all relevant factors and arrived at an award which was reasonable in the circumstances. I have no reason to upset the same.
The upshot is that the appeal herein has no merit and the same is dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED
THIS 14 TH JULY 2026
D.O. ONYANGO
JUDGE
1
The appellant, vide a plaint dated 17.11.2016, filed suit against the respondent, being Nairobi MCCC no.7878 of 2016) of even date. The appellant sought for general damages for pain and suffering, special damages of Kshs. 11,265, interest and cost of the suit. The suit was on account of a road traffic accident that occurred on 9.5.2016 involving motor vehicle KBQ 692P owned by the respondent and motor vehicle KBD 642R owned by the appellant. The appellant attributed the occurrence of the accident to the respondent and pleaded particulars of negligence as against the respondent.
The respondent entered appearance and filed his statement of defence dated 4.8.2022 denying the averments in the plaint and put the appellant to strict proof. The matter proceeded for hearing on diverse dates and by a judgment delivered on the 17.2.25, the trial court dismissed the appellant’s case against the respondent. The dismissal gave rise to the appeal.
The appellant, who testified as PW1 stated in evidence that at around 1am on the material date, he was lawfully driving motor vehicle KBD 642R along Eastern bypass near APTC when motor vehicle KBQ 692P collided with his car head-on causing extensive damage. The appellant was injured in the accident. He was treated at Mama Lucy Kibaki hospital and later Kenyatta National hospital. He blamed the driver of motor vehicle KBQ 692P for encroaching into his lane. In cross examination the appellant stated that he blames the driver of motor vehicle KBQ 650 (sic) for causing the accident and the reason was because the driver flashed full lights on his face such that he was blinded by the light hence unable to control his car. He testified that he had to swerve to avoid the accident.
PW2, PC Elvis Nakure, a witness for the appellant testified and produced a police abstract dated 31.5.26. The police abstract indicated that the matter was pending under investigations. The appellant’s own witness testified that his motor vehicle which was coming from Utawala direction heading towards Embakasi had failed to keep to his proper lane and had a head on collision. That both drivers sustained injuries from the accident.
PW3 Dr. Wambugu Mwangi had testified that he did examine the appellant and prepared a medical report. His evidence was that the appellant sustained dislocation of the right hip joint as a result of the accident.
The respondent testified as DW1. His evidence was that on the 9.5.2016, at around 1 am, he was driving his motor vehicle KBQ 692P along Eastern bypass near APTC when motor vehicle KBD 642R was negligently driven or managed that it veered off its lawful lane and collided with his car which was on its lawful lane thus causing extensive damage to his car. That a PC Rachel Lokuton who did investigations concluded that the appellant was to blame. That a police abstract issued to him on 19.5.16 indicated that the appellant was to blame. He did not understand how a second police abstract dated 31.3.2016 was issued to the appellant indicating that the matter was pending under investigation.
The respondent called witness PC Peter Kiogora who testified and produced a police abstract indicating that the appellant was to blame for the accident as he had failed to keep to his proper lane and caused a collision with the respondent’s motor vehicle.
The appellant submitted that the court ought to have apportioned liability equally in the ratio of 50:50. In support of this position, the appellant cited the case of Raymond Mwiraria v Kelvin Omondi Ouda (2024) eKLR where the learned judge apportioned liability in the ratio of 50:50.
The appellant further submitted that the award of Kshs. 350,000 for general damages was inordinately low and should be substituted with one for Kshs. 4,000,000. The appellant cited the case of Michael Maina Gitonga v Serah Njuguna (2021) eKLR where an award of Kshs. 1,500,000 was made for a claimant who had sustained inter alia a dislocation of the right hip, fractures and soft tissue injuries.
The appellant further asked that the court ought to have awarded Kshs. 5,550 as special damages.
The respondent opposed the appeal. The respondent submitted that the learned trial magistrate had the opportunity of listening to the witnesses and that the judgment was informed by the evidence on record. That the appellant failed to tender convincing evidence to prove his case. That the appellant failed to discharge the burden of proof. The respondent cited the case of Hassan and 3 others v Safaricom Ltd & Another (2025) KEELC 8182 (KLR) and the case of Busolo v Gathua (2025) KEHC 16877 (KLR).
The respondent submitted that the trial court could not be faulted for dismissing the case. The award on quantum was within the limits acceptable regard being had to the injuries suffered by the appellant.
ANALYSIS AND DETERMINATION
This being a first appeal, this court has a duty to reevaluate, reassess and reanalyze the extracts of the record and draw its own conclusions. This was buttressed and emphasised by the court of appeal in the case of Odera T/A A.J. Odera & Associates v Machira T/A Machira & Co. Advocates (2013) KECA 208 (KLR) where the court of appeal held:
“This being a first appeal, we are reminded that our primary role as a first appellate court namely, to reevaluate, reassess and reanalyze the extracts of the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
The court should determine whether the learned magistrate erred in law in finding that the appellant had failed to discharge the burden of proof.
It is well settled that the burden of proof in civil cases primarily lies upon the claimant. Sections 107 and 108 of the Evidence Act (Cap 80) stipulates as follows:
‘107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108 The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on either side.’
In this case, while there is no dispute that an accident did occur between a motor vehicle being driven by the appellant and that being driven by the respondent, the burden was on the appellant to present before court cogent and credible evidence that the respondent was culpable for negligence. The appellant’s case was not predicated on the weakness of the respondent’s case and the mere fact that he did not lead sufficient evidence is not good reason to apportion liability in the ratio of 50:50 as suggested by the appellant. The standard of proof was on a balance of probabilities.
Denning J in Miller v Minister of Pensions (1947) 2 All ER 372 while discussing the degree of proof stated thus:
“That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, ‘We think it more probable than not, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
The appellant’s own witness who testified as PW2, other than producing police abstract which indicated that the accident was pending under investigations, did not help his case. The said witness testified that it is the motor vehicle which was being driven by the appellant KBD 642R that failed to keep to its lawful lane and drove onto the path of the respondent’s motor vehicle. The evidence of PW2 actually is in all fours with that of the respondent. The respondent’s evidence which also shows that the appellant while driving motor vehicle KBD 642R veered off its lane and drove onto the path of the respondent’s motor vehicle KBQ 692P, remained unimpeached even during cross examination. This is a classic case where the appellant/claimant failed to prove his case. Incidentally in his evidence in court unlike what was recorded in his written statement, the appellant appeared to suggest that the respondent while driving motor vehicle KBQ 642P flashed full lights on his face and he was blinded and unable to control his car. This piece of evidence shows that the appellant not only changed his evidence as recorded but also shows that he was not keen on the road.
To suggest that because the appellant failed to adduce cogent evidence in proof of his case, the court should apportion liability in the ratio of 50:50 will not only be shifting the burden of proof to the respondent but also adopting a lazy approach to examination of evidence placed before court. I decline that invitation with the result that I find no basis upon which to fault the lower court’s finding on liability. I uphold the finding dismissing the claim on liability.
On quantum, the court of appeal pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd T/A Meru Express Services v A.M. Lubia & Another (1987) KLR 27 as follows:
“The principle to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial judge were held in the court of appeal for the former East Africa to be that it must be satisfied that either the judge in assessing the damages, took into account an irrelevant fact or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”
This court cannot therefore say that had it handled the case before the lower court, it would have awarded a different figure.
The appellant suffered posterior dislocation right hip joint and right leg swelling and pain. He had no fracture and the case law cited by the appellant involved a claimant who had suffered more serious injuries. The learned trial magistrate considered amongst others the case of Kembe v Abiud (2023) KEHC 1673 (KLR). In my assessment he considered all relevant factors and arrived at an award which was reasonable in the circumstances. I have no reason to upset the same.
The upshot is that the appeal herein has no merit and the same is dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED
THIS 14 TH JULY 2026
D.O. ONYANGO
JUDGE
1