Background:
1. This is a series of three appeal E744 of 2025, E745 of 2025 and E746 of 2025, the Appellants are different but the Respondents are the same. The Appellants requested this Court to handle all the three since they arise from the same events.
2. The Appellant in his plain dated 8th October 2020 sued the Respondents seeking special damages of Kshs.397,773/= and general damages for pain and suffering together with costs of the suit.
3. His account of the events is that on or about 8th May 2020 he was travelling as passenger aboard motor vehicle 22 CG 08A long southern bypass when the 1st Respondent acting for the 2nd Respondent negligently drove motor vehicle KCH 009z that collided with the motor vehicle he was in from behind and he sustained injuries and has suffered loss and damage. He particularized his injuries and the damages sought. It was his case that he suffered a 15% disability on his left leg. He filed his list of documents and attached his supporting documents.
4. The Respondents vide their statement of defence dated 18th February 2022 denied the Appellant’s account of the accident. The blamed the driver of the motor vehicle where the Appellant was a passenger. They further blamed the Appellant for failing to use a seat belt among other blames.
5. The Trial Court evaluated the evidence and issued the orders that; liability is apportioned at 50-50, general damages of Khs.700,000 and special damages of Kshs.3550/=.
The Appeal.
6. The Appellant herein aggrieved by the decision of the Trial preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The learned trial Magistrate erred in apportioning liability at 50-50.
(ii) The learned Magistrate erred by finding a passenger equally to blame for the accident together with the Respondents.
(iii) The learned Magistrate erred by apportioning blame to a non-party deceased without third party proceedings
(iv) The learned Magistrate erred by basing his decision on liability on a mere police opinion in police abstract unsupported by oral evidence or conviction in a traffic court case.
The Submissions:
7. The Appellant filed its written submissions and bundle of authorities dated 24th November 2025 argued that the Trail Court erred on apportioning liability at 50-50 which was not based on any evidence, he faulted the trial court for finding a passenger equally to blame for an accident together with the Respondents. He further blamed the Trial Court for apportioning blame to a non-party deceased without any third-party proceedings. He faulted the Magistrate for basing his decision on a police opinion in a police abstract supported by oral evidence or conviction in a traffic court case.
8. The Respondent vide her submissions dated 24th November 2025 whereby they highlighted the testimonies of the police officer and the Appellant, together with the police abstract dated 8th May 2020.they cited numerous authorities which support their case. They are of the position that the Appellant has failed to discharge the burden of proof on allegations of negligence against them. Therefore, the Appellant’s case fall on a balance of probability.
Analysis of the issues for determination.
9. From the above analysis, the main issues for determination is whether the Trial Court was justified in issuing the compensation as per the judgment. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof in such cases.
10. It is now this Court’s duty to apply the above standard to the evidence on record so as to ascertain whether the Respondent, then Plaintiff, discharged his burden of proof as required in law.
11. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
12. From the proceedings of the Trial Court, the Appellant testified and gave an account of the accident, he informed court that he was a passenger and while enroute he heard a bang from behind, he became unconscious and regained consciousness and saw he was at the road side and was injured. He explained is knee injury and the effect it has had on him. On cross examination, he informed court that he did not see the other motor vehicle he only heard impact and the were hit from behind. He informed court that the driver has since died. He testified that he had his seatbelt on and that he was examined by Dr. Wambugu and that he was attending therapy. In his witness statement he averred that he incurred a bill of Kshs.363,926/= as per the invoice dated 15/ 05/2026
13. By consent of the parties, the documents including the police abstracts, medical reports were produced in the Trial Court. The Appellant in his submissions at the Trial court undertook a study of the range of the compensation in similar cases and suggested to the Court a figure of Kshs.850,000/= as award in general damages in lieu of the inflationary trends in the country.
14. The Respondents filed their submission at the Trial Court together with their defence relied on the 2nd medical report by Dr. Wambugu. They proposed the figure of Kshs.400,000 for general damages and urged the Court to dismiss the prayer for special damages of Kshs.397,773 for lack of official receipts.
15. I have considered the relevant authorities and taken into account all the relevant factor and on the issue of the special damages, I have looked at the evidence supporting the same from the record of appeal and all I see is a receipt of Kshs.3000 from Dr. Wokabi and invoice from NTSA for Kshs.550/=. There’s no further supported amounts therefore this Court agrees with the Trial court that the same ought to have been strictly proved. I uphold the finding of the Trial Court. On the plaint all the Appellant did was list medical cost at Kshs. 379,773/= without supporting and proving that indeed the amount was incurred.
16. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Apollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
17. It has been numerously held that an appellate court will interfere if it is satisfied that the Trial Court did not exercise its discretion well. Looking at the range of awards in such an injury, I am fully persuaded that the Trial Court did not err. The amount of Kshs.700,000 is upheld by this Court.
18. On the ground of liability, the Appellant is asking this Court to find the Respondents to 100% liable. If faults the findings of the Trial Court for holding a passenger 50% liable without the legal basis.
19. The Appellant further raised an issue that the Trial Court blamed a non-party or the deceased without any third-party proceedings. He cited authorities to support his position.
20. The Respondents on the issue of 50-50 liability, in their reiterated that it was Motor vehicle 22 CG 086A which caused the accident since it was over speeding. They relied on the passenger’s testimony who said they did not see the Motor Vehicle KCH 009P and this was what informed the police to conclude investigations without the driver of KCH 009Z. They further submitted that the police investigations could not find a reason to blame the driver of KCH 009Z so he should not be condemned to bear liability.
21. This Court must now decide if the Trial Court erred in faulting both parties equally. The Appellants testified and informed the Trial Court that the car they were travelling in was hit from behind. In view, the Respondents were required to give their account of the accident and rebut the Appellant’s assertions.
22. There appears to be existing two police abstracts in this case. And when the police testified (PW1) as from the proceedings in E745 of 2025, he informed Court that the matter is still under investigations, he did not produce any sketch map of the scene of the accident, therefore the only evidence available for this Court to consider is the testimonies of the people who were present during the accident and testified at the Trial Court.
23. It is worth noting that the Respondents opted not to call any witnesses during trial, while this doesn’t show that they derogated their right to a fair hearing, it was incumbent on them to give an account of the accident. The Driver of the motor vehicle KCH 009Z would have been a crucial witness. The Appellant’s having witnessed the accident and gave direct evidence. The burden shifted to the Respondents to dislodge the claim.
24. In my view this being a civil suit which ought to be decided on a balance of probability, looking at the totality of the evidence the Court persuaded the Appellant’s account of the events is convincing hence they discharged the burden as required. Section 107 Burden of proof provides that
(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 those 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.
25. The Court of Appeal captured the principle of ‘whoever asserts must prove’ in the case of Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi [2013] eKLR as follows: -
“-----------section 107 of the Evidence Act provides that “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 those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence…”
26. I am therefore persuaded that the Trial Court erred in faulting the Appellants. I therefore set aside that finding and I find the Respondent’s 100% liable for the accident.
27. The rest of the awards and orders of the Trial Court are hereby affirmed. Costs awarded to the Appellant.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kanana Learned Counsel for the Appellants.
Bore Learned Counsel for the Respondent.
Michael Court Assistant.
1. This is a series of three appeal E744 of 2025, E745 of 2025 and E746 of 2025, the Appellants are different but the Respondents are the same. The Appellants requested this Court to handle all the three since they arise from the same events.
2. The Appellant in his plain dated 8th October 2020 sued the Respondents seeking special damages of Kshs.397,773/= and general damages for pain and suffering together with costs of the suit.
3. His account of the events is that on or about 8th May 2020 he was travelling as passenger aboard motor vehicle 22 CG 08A long southern bypass when the 1st Respondent acting for the 2nd Respondent negligently drove motor vehicle KCH 009z that collided with the motor vehicle he was in from behind and he sustained injuries and has suffered loss and damage. He particularized his injuries and the damages sought. It was his case that he suffered a 15% disability on his left leg. He filed his list of documents and attached his supporting documents.
4. The Respondents vide their statement of defence dated 18th February 2022 denied the Appellant’s account of the accident. The blamed the driver of the motor vehicle where the Appellant was a passenger. They further blamed the Appellant for failing to use a seat belt among other blames.
5. The Trial Court evaluated the evidence and issued the orders that; liability is apportioned at 50-50, general damages of Khs.700,000 and special damages of Kshs.3550/=.
The Appeal.
6. The Appellant herein aggrieved by the decision of the Trial preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The learned trial Magistrate erred in apportioning liability at 50-50.
(ii) The learned Magistrate erred by finding a passenger equally to blame for the accident together with the Respondents.
(iii) The learned Magistrate erred by apportioning blame to a non-party deceased without third party proceedings
(iv) The learned Magistrate erred by basing his decision on liability on a mere police opinion in police abstract unsupported by oral evidence or conviction in a traffic court case.
The Submissions:
7. The Appellant filed its written submissions and bundle of authorities dated 24th November 2025 argued that the Trail Court erred on apportioning liability at 50-50 which was not based on any evidence, he faulted the trial court for finding a passenger equally to blame for an accident together with the Respondents. He further blamed the Trial Court for apportioning blame to a non-party deceased without any third-party proceedings. He faulted the Magistrate for basing his decision on a police opinion in a police abstract supported by oral evidence or conviction in a traffic court case.
8. The Respondent vide her submissions dated 24th November 2025 whereby they highlighted the testimonies of the police officer and the Appellant, together with the police abstract dated 8th May 2020.they cited numerous authorities which support their case. They are of the position that the Appellant has failed to discharge the burden of proof on allegations of negligence against them. Therefore, the Appellant’s case fall on a balance of probability.
Analysis of the issues for determination.
9. From the above analysis, the main issues for determination is whether the Trial Court was justified in issuing the compensation as per the judgment. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof in such cases.
10. It is now this Court’s duty to apply the above standard to the evidence on record so as to ascertain whether the Respondent, then Plaintiff, discharged his burden of proof as required in law.
11. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
12. From the proceedings of the Trial Court, the Appellant testified and gave an account of the accident, he informed court that he was a passenger and while enroute he heard a bang from behind, he became unconscious and regained consciousness and saw he was at the road side and was injured. He explained is knee injury and the effect it has had on him. On cross examination, he informed court that he did not see the other motor vehicle he only heard impact and the were hit from behind. He informed court that the driver has since died. He testified that he had his seatbelt on and that he was examined by Dr. Wambugu and that he was attending therapy. In his witness statement he averred that he incurred a bill of Kshs.363,926/= as per the invoice dated 15/ 05/2026
13. By consent of the parties, the documents including the police abstracts, medical reports were produced in the Trial Court. The Appellant in his submissions at the Trial court undertook a study of the range of the compensation in similar cases and suggested to the Court a figure of Kshs.850,000/= as award in general damages in lieu of the inflationary trends in the country.
14. The Respondents filed their submission at the Trial Court together with their defence relied on the 2nd medical report by Dr. Wambugu. They proposed the figure of Kshs.400,000 for general damages and urged the Court to dismiss the prayer for special damages of Kshs.397,773 for lack of official receipts.
15. I have considered the relevant authorities and taken into account all the relevant factor and on the issue of the special damages, I have looked at the evidence supporting the same from the record of appeal and all I see is a receipt of Kshs.3000 from Dr. Wokabi and invoice from NTSA for Kshs.550/=. There’s no further supported amounts therefore this Court agrees with the Trial court that the same ought to have been strictly proved. I uphold the finding of the Trial Court. On the plaint all the Appellant did was list medical cost at Kshs. 379,773/= without supporting and proving that indeed the amount was incurred.
16. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Apollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
17. It has been numerously held that an appellate court will interfere if it is satisfied that the Trial Court did not exercise its discretion well. Looking at the range of awards in such an injury, I am fully persuaded that the Trial Court did not err. The amount of Kshs.700,000 is upheld by this Court.
18. On the ground of liability, the Appellant is asking this Court to find the Respondents to 100% liable. If faults the findings of the Trial Court for holding a passenger 50% liable without the legal basis.
19. The Appellant further raised an issue that the Trial Court blamed a non-party or the deceased without any third-party proceedings. He cited authorities to support his position.
20. The Respondents on the issue of 50-50 liability, in their reiterated that it was Motor vehicle 22 CG 086A which caused the accident since it was over speeding. They relied on the passenger’s testimony who said they did not see the Motor Vehicle KCH 009P and this was what informed the police to conclude investigations without the driver of KCH 009Z. They further submitted that the police investigations could not find a reason to blame the driver of KCH 009Z so he should not be condemned to bear liability.
21. This Court must now decide if the Trial Court erred in faulting both parties equally. The Appellants testified and informed the Trial Court that the car they were travelling in was hit from behind. In view, the Respondents were required to give their account of the accident and rebut the Appellant’s assertions.
22. There appears to be existing two police abstracts in this case. And when the police testified (PW1) as from the proceedings in E745 of 2025, he informed Court that the matter is still under investigations, he did not produce any sketch map of the scene of the accident, therefore the only evidence available for this Court to consider is the testimonies of the people who were present during the accident and testified at the Trial Court.
23. It is worth noting that the Respondents opted not to call any witnesses during trial, while this doesn’t show that they derogated their right to a fair hearing, it was incumbent on them to give an account of the accident. The Driver of the motor vehicle KCH 009Z would have been a crucial witness. The Appellant’s having witnessed the accident and gave direct evidence. The burden shifted to the Respondents to dislodge the claim.
24. In my view this being a civil suit which ought to be decided on a balance of probability, looking at the totality of the evidence the Court persuaded the Appellant’s account of the events is convincing hence they discharged the burden as required. Section 107 Burden of proof provides that
(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 those 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.
25. The Court of Appeal captured the principle of ‘whoever asserts must prove’ in the case of Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi [2013] eKLR as follows: -
“-----------section 107 of the Evidence Act provides that “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 those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence…”
26. I am therefore persuaded that the Trial Court erred in faulting the Appellants. I therefore set aside that finding and I find the Respondent’s 100% liable for the accident.
27. The rest of the awards and orders of the Trial Court are hereby affirmed. Costs awarded to the Appellant.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kanana Learned Counsel for the Appellants.
Bore Learned Counsel for the Respondent.
Michael Court Assistant.