(An appeal from the judgement of Hon. B. Kasavuli, SPM in Milimani CMCC E1285 of 2023)
The respondent, vide a plaint dated 27.2.2023 sued the 1st and 2nd appellant for general damages, special damages and compensation for diminished earning capacity, costs of the suit and interest. The suit was on account of a road traffic accident that occurred on 22.11.2022.
The respondent's case was that on the material date, she was lawfully doing her business at her premises off Digo road when motor vehicle registration number KAD 899L, driven by the 2 nd appellant and owned by the 1st appellant, was recklessly and carelessly managed that it lost control, veered off the road and knocked the plaintiff, thereby leaving her with bodily injuries.
The appellants filed a joint statement of defence and denied liability. They contended that the plaintiff was to blame for the accident.
During the hearing, the respondent testified and called one witness. In her evidence, the plaintiff testified that on 22.11.2022 she was lawfully doing her daily chores in her business premises within Gikomba Market off Digo road when motor vehicle registration No. KAD 899L, which was leaving the market to join Digo road was recklessly and carelessly driven, in that the driver was speeding, leading to loss of control as a result of which the motor vehicle knocked and sandwiched the plaintiff against a wheelbarrow. The respondent sustained injuries. The respondent was rushed to Pumwani dispensary and later treated in Mbagathi hospital, St. Mary’s hospital and Kenyatta National hospital. The respondent's case is that she was a business lady at Gikomba market earning Ksh. 1,500 daily but that due to the injuries, she was unable to make the said amount.
The respondent’s witness PC Naibei, police officer testified and produced a police abstract indicating that the accident involving motor vehicle registration number KAD 899L was reported to the police. He testified that upon visiting the scene, a decision was made that the driver of motor vehicle KAD 899L was to blame for the accident.
The appellants (defence) did not call any witness however a medical report dated 4.5.2023 was produced as defence exhibit one.
The learned magistrate having considered the evidence on record, in his judgement dated 7.10.2024, found the appellants 100% liable in negligence. The trial court awarded damages as follows:
◾ General damages – Ksh 500,000
◾ Loss of earnings – Ksh 150,000
◾ Special damages – Ksh 85,917
Total – Ksh 735,917
Aggrieved by the judgement, the appellants instituted this appeal on the following grounds;
a) That the learned magistrate erred in law and fact in failing to consider that the appellants had shown prima facie case with a probability of success.
b) The learned magistrate erred in law and fact by failing to note that the purported plaintiff was not involved in the accident.
c) That the learned magistrate erred in law and in fact in failing to consider that there was no concrete evidence placed before the court to determine circumstances surrounding the accident.
d) That the learned magistrate erred in law and fact in failing to consider and finding that the contents of the police abstract only showed that a report of an accident was made.
e) That the learned magistrate erred in law and fact in failing to consider and find that a police abstract is not proof of liability.
f) That the learned magistrate erred in law and fact in failing to consider and find that the police officer was not present at the scene of the accident.
The appellants submitted that the respondent failed to produce evidence to show that the appellants were to blame for the accident by way of sketch maps. That the trial court failed to consider that a police abstract is not conclusive proof of liability neither is it proof that an accident occurred. The appellants cited the following cases to buttress their points;
◾ Omoke -v- Owino & 3 others (2024) KEHC 2652 (KLR)
◾ ZAO & CAO -v- Stephen Amollo (2019) eKLR
◾ Stanley Oguti Attai -v- Peter Chege Mbugua (2019) eKLR
The appellants submitted that the police officer who testified neither witnessed nor investigated the accident and his testimony amounts to secondary evidence. The appellants cited the following case law;
◾ Bwire -v- Wayo & Sailoki (2022) KEHC 7 KLR
◾ Omwoyo -v- Nyangira (2022) KEHC 16086 (KLR)
◾ Farah -v- Lento Agencies (2006) 1 KLR 124, 125
The appellants further submitted that the award of Ksh 500,000 as general damages was excessive and inordinately high. The appellants cited the case of Ngangi -v- Laxmanbhai Construction Limited (2024) KEELRC 1108 (KLR), Francis Ngelechei Tarus -v- Robert Barasa Khaemba (2019) KEHC 10635(KLR)
The appellants further submitted that the award of Ksh 150,000 for diminished earning capacity was excessive.
The respondent submitted that there was uncontroverted evidence that an accident did occur on 22.11.2022 involving motor vehicle registration number KAD 899L which was being driven by the 2nd appellant and that the driver was to blame for the accident.
The respondent submitted that the findings on quantum were supported by case law including the case of Pyramid Packaging Limited -v- Humphrey W. Wanjala (2012) eKLR, Sino Hydro Corporation Ltd -v- Daniela Atela Kamuda(2016) eKLR
ANALYSIS AND DETERMINATION
This being a first appeal, this court is under duty to re-evaluate and re-analyse the evidence before the trial court and make its own decisions. The court must however, bear in mind that unlike the trial court, this court did not have the advantage of observing the demeanor of the witnesses and hearing the evidence first hand.
The foregoing duty was succinctly stated by the court of appeal in the case of Selle & Another –v– Associated Motor Boat Company Limited (1968) EA 123 and Peters -v- Sunday Post Limited (1985) EA 424
I have evaluated the evidence before the trial court in an exercise akin to a retrial together with the submissions by the parties.
The following issues arise for determination;
(a) Whether the appellants were liable in negligence for the accident of 22.11.2022.
(b) Whether the trial court erred in the assessment of quantum of damages.
The burden of proof as regards liability of the appellants rested with the respondent. The initial evidential burden rested with the respondent and only upon discharging the said burden was the appellants under a duty to rebut. The mere fact that the appellants never adduced any evidence on liability did not make the respondent’s case proved on a balance of probabilities as required.
In Evans Nyakwana -v- Cleophas Bwana Ongaro (2015) eKLR the court in setting out the legal burden of proof in civil cases stated;
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence.
…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
As regards the standard of proof, Kimaru J (as he then was in) William Kabogo Gitau -v- George Thuo & 2 others (2010) 1 KLR 526 stated as follows;
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred”.
The scope and extent of the fundamental legal principles on who is to blame for negligence in a case of the nature before the trial court are well settled.
In the case of Nandwa -v- Kenya Kazi Limited (1988) KLR the court held;
“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides some answer adequate to displace the inference.”
In the instant case, the only evidence placed before court on how the accident occurred is that of the respondent who in her evidence stated that she was lawfully doing her chores in her business premises at Gikomba market when the appellants motor vehicle, while being driven at high speed, the driver lost control of the same and it knocked her. PW2, the police officer who produced the police abstract issued after the accident was reported, testified that the records indicated that the appellant driver was to blame for the accident. The respondent’s evidence, which in my assessment was cogent, remained uncontroverted. The trial court had no difficulty finding that on the basis of the evidence on record, the appellants were liable in negligence. On my part, I am satisfied that the respondent proved on a balance of probabilities that the appellants were negligent and I find no contributory negligence whatsoever on the part of the respondent. The finding on liability remains undisturbed.
On the issue of quantum; the principles applicable on appeal against quantum of damages are well settled.
The court of appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-1988] KAR, set out the parameters under which an appellate court will interfere with an award on general damages when it held;
“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
And in Loice Wanjiku Kangunda -v- Julius Gachau Mwangi CA 142 of 2003(UR) the court of appeal held;
“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence, an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles. see Mariga -v- Musila (1984) KLR 257 ”
In the instant case, the trial court awarded a sum of Ksh 500,000 as general damages. The respondent sustained right ring finger Gangrene. The medical reports by both Dr. G.K Mwaura (for respondent) and Dr. Waithaka (for the appellant) vouched for the existence of the injuries. Both doctors agreed on assessment of residual permanent disability of four percent (4%). The injury led to amputation of the right ring finger.
The trial court considered the cases of Pyramid Packaging Limited -v- Humphrey W. Wanjala (2012) eKLR and Sino Hydro Corporation Ltd -v- Daniela Atela Kamuda(2016) eKLR where victims who had sustained amputation of the finger were awarded Kshs 650,000 and Kshs 600,000 respectively. The trial court considered the age of the case law cited before him. I am therefore satisfied that the trial magistrate was guided by the principles that should help the court in assessment of damages as set out in the case of Charles Oriwo Odeyo -v- Apollo Justus Andabwa & Another (2017) eKLR and which include;
– An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
– The award should be commensurate with the injuries sustained.
– Previous awards in similar injuries sustained are mere guides but each case be treated on its own facts.
– Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
– The awards should not be inordinately low or high, see Boniface Waiti & Another –v– Michael Kariuki Kamau (2007) eKLR.
I do not find any evidence to show that the trial court acted on wrong principles or that it took into account matters which it ought not to have or left out matters that it ought to have considered. The decision on quantum of general damages is sound and I find no reason to disturb the same.
On the award for diminished earning capacity, the court of appeal expressed itself on when an award under diminished earning capacity should be made. The court stated;
“It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of future earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. The characteristics of an award for loss of earning capacity and the principles on which it is assessed were considered more comprehensively in Moeliker v A. Reyrolle & Co. Ltd [1977] 1 WLR 132 . In that case, Brownie LJ said on page 140, paragraph B;
“This head of damages generally only arises where the plaintiff is at the time of trial in employment, but there is a risk that he may lose this employment at some time in future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well-paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial”
The trial court found as a fact that the respondent was engaged in the same enterprise, save that the earnings had reduced. From the evidence on record, there is no nexus between the reduced earnings and the injury sustained by the respondent. It is not clear how the injury has put her in a disadvantage that would result into diminished earnings. I find that the award for diminished earning was not grounded on evidence placed before court and was erroneously made. The said award is accordingly set aside.
As regards special damages, the same were properly pleaded and specifically proved as required. I find no reason to interfere with the said award.
For the reasons I have stated, the appeal on liability is dismissed. The appeal on quantum is allowed to the extent that the award for diminished earning capacity is set aside. The other awards remain as stated by the trial court. The appellant having succeeded only to a limited extent, I make no order as to costs. The respondent shall have costs before the trial court.
DATED, SIGNED AND DELIVERED THIS 14 th JULY 2026
D.O. ONYANGO
JUDGE
2
The respondent, vide a plaint dated 27.2.2023 sued the 1st and 2nd appellant for general damages, special damages and compensation for diminished earning capacity, costs of the suit and interest. The suit was on account of a road traffic accident that occurred on 22.11.2022.
The respondent's case was that on the material date, she was lawfully doing her business at her premises off Digo road when motor vehicle registration number KAD 899L, driven by the 2 nd appellant and owned by the 1st appellant, was recklessly and carelessly managed that it lost control, veered off the road and knocked the plaintiff, thereby leaving her with bodily injuries.
The appellants filed a joint statement of defence and denied liability. They contended that the plaintiff was to blame for the accident.
During the hearing, the respondent testified and called one witness. In her evidence, the plaintiff testified that on 22.11.2022 she was lawfully doing her daily chores in her business premises within Gikomba Market off Digo road when motor vehicle registration No. KAD 899L, which was leaving the market to join Digo road was recklessly and carelessly driven, in that the driver was speeding, leading to loss of control as a result of which the motor vehicle knocked and sandwiched the plaintiff against a wheelbarrow. The respondent sustained injuries. The respondent was rushed to Pumwani dispensary and later treated in Mbagathi hospital, St. Mary’s hospital and Kenyatta National hospital. The respondent's case is that she was a business lady at Gikomba market earning Ksh. 1,500 daily but that due to the injuries, she was unable to make the said amount.
The respondent’s witness PC Naibei, police officer testified and produced a police abstract indicating that the accident involving motor vehicle registration number KAD 899L was reported to the police. He testified that upon visiting the scene, a decision was made that the driver of motor vehicle KAD 899L was to blame for the accident.
The appellants (defence) did not call any witness however a medical report dated 4.5.2023 was produced as defence exhibit one.
The learned magistrate having considered the evidence on record, in his judgement dated 7.10.2024, found the appellants 100% liable in negligence. The trial court awarded damages as follows:
◾ General damages – Ksh 500,000
◾ Loss of earnings – Ksh 150,000
◾ Special damages – Ksh 85,917
Total – Ksh 735,917
Aggrieved by the judgement, the appellants instituted this appeal on the following grounds;
a) That the learned magistrate erred in law and fact in failing to consider that the appellants had shown prima facie case with a probability of success.
b) The learned magistrate erred in law and fact by failing to note that the purported plaintiff was not involved in the accident.
c) That the learned magistrate erred in law and in fact in failing to consider that there was no concrete evidence placed before the court to determine circumstances surrounding the accident.
d) That the learned magistrate erred in law and fact in failing to consider and finding that the contents of the police abstract only showed that a report of an accident was made.
e) That the learned magistrate erred in law and fact in failing to consider and find that a police abstract is not proof of liability.
f) That the learned magistrate erred in law and fact in failing to consider and find that the police officer was not present at the scene of the accident.
The appellants submitted that the respondent failed to produce evidence to show that the appellants were to blame for the accident by way of sketch maps. That the trial court failed to consider that a police abstract is not conclusive proof of liability neither is it proof that an accident occurred. The appellants cited the following cases to buttress their points;
◾ Omoke -v- Owino & 3 others (2024) KEHC 2652 (KLR)
◾ ZAO & CAO -v- Stephen Amollo (2019) eKLR
◾ Stanley Oguti Attai -v- Peter Chege Mbugua (2019) eKLR
The appellants submitted that the police officer who testified neither witnessed nor investigated the accident and his testimony amounts to secondary evidence. The appellants cited the following case law;
◾ Bwire -v- Wayo & Sailoki (2022) KEHC 7 KLR
◾ Omwoyo -v- Nyangira (2022) KEHC 16086 (KLR)
◾ Farah -v- Lento Agencies (2006) 1 KLR 124, 125
The appellants further submitted that the award of Ksh 500,000 as general damages was excessive and inordinately high. The appellants cited the case of Ngangi -v- Laxmanbhai Construction Limited (2024) KEELRC 1108 (KLR), Francis Ngelechei Tarus -v- Robert Barasa Khaemba (2019) KEHC 10635(KLR)
The appellants further submitted that the award of Ksh 150,000 for diminished earning capacity was excessive.
The respondent submitted that there was uncontroverted evidence that an accident did occur on 22.11.2022 involving motor vehicle registration number KAD 899L which was being driven by the 2nd appellant and that the driver was to blame for the accident.
The respondent submitted that the findings on quantum were supported by case law including the case of Pyramid Packaging Limited -v- Humphrey W. Wanjala (2012) eKLR, Sino Hydro Corporation Ltd -v- Daniela Atela Kamuda(2016) eKLR
ANALYSIS AND DETERMINATION
This being a first appeal, this court is under duty to re-evaluate and re-analyse the evidence before the trial court and make its own decisions. The court must however, bear in mind that unlike the trial court, this court did not have the advantage of observing the demeanor of the witnesses and hearing the evidence first hand.
The foregoing duty was succinctly stated by the court of appeal in the case of Selle & Another –v– Associated Motor Boat Company Limited (1968) EA 123 and Peters -v- Sunday Post Limited (1985) EA 424
I have evaluated the evidence before the trial court in an exercise akin to a retrial together with the submissions by the parties.
The following issues arise for determination;
(a) Whether the appellants were liable in negligence for the accident of 22.11.2022.
(b) Whether the trial court erred in the assessment of quantum of damages.
The burden of proof as regards liability of the appellants rested with the respondent. The initial evidential burden rested with the respondent and only upon discharging the said burden was the appellants under a duty to rebut. The mere fact that the appellants never adduced any evidence on liability did not make the respondent’s case proved on a balance of probabilities as required.
In Evans Nyakwana -v- Cleophas Bwana Ongaro (2015) eKLR the court in setting out the legal burden of proof in civil cases stated;
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence.
…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
As regards the standard of proof, Kimaru J (as he then was in) William Kabogo Gitau -v- George Thuo & 2 others (2010) 1 KLR 526 stated as follows;
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred”.
The scope and extent of the fundamental legal principles on who is to blame for negligence in a case of the nature before the trial court are well settled.
In the case of Nandwa -v- Kenya Kazi Limited (1988) KLR the court held;
“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides some answer adequate to displace the inference.”
In the instant case, the only evidence placed before court on how the accident occurred is that of the respondent who in her evidence stated that she was lawfully doing her chores in her business premises at Gikomba market when the appellants motor vehicle, while being driven at high speed, the driver lost control of the same and it knocked her. PW2, the police officer who produced the police abstract issued after the accident was reported, testified that the records indicated that the appellant driver was to blame for the accident. The respondent’s evidence, which in my assessment was cogent, remained uncontroverted. The trial court had no difficulty finding that on the basis of the evidence on record, the appellants were liable in negligence. On my part, I am satisfied that the respondent proved on a balance of probabilities that the appellants were negligent and I find no contributory negligence whatsoever on the part of the respondent. The finding on liability remains undisturbed.
On the issue of quantum; the principles applicable on appeal against quantum of damages are well settled.
The court of appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-1988] KAR, set out the parameters under which an appellate court will interfere with an award on general damages when it held;
“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
And in Loice Wanjiku Kangunda -v- Julius Gachau Mwangi CA 142 of 2003(UR) the court of appeal held;
“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence, an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles. see Mariga -v- Musila (1984) KLR 257 ”
In the instant case, the trial court awarded a sum of Ksh 500,000 as general damages. The respondent sustained right ring finger Gangrene. The medical reports by both Dr. G.K Mwaura (for respondent) and Dr. Waithaka (for the appellant) vouched for the existence of the injuries. Both doctors agreed on assessment of residual permanent disability of four percent (4%). The injury led to amputation of the right ring finger.
The trial court considered the cases of Pyramid Packaging Limited -v- Humphrey W. Wanjala (2012) eKLR and Sino Hydro Corporation Ltd -v- Daniela Atela Kamuda(2016) eKLR where victims who had sustained amputation of the finger were awarded Kshs 650,000 and Kshs 600,000 respectively. The trial court considered the age of the case law cited before him. I am therefore satisfied that the trial magistrate was guided by the principles that should help the court in assessment of damages as set out in the case of Charles Oriwo Odeyo -v- Apollo Justus Andabwa & Another (2017) eKLR and which include;
– An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
– The award should be commensurate with the injuries sustained.
– Previous awards in similar injuries sustained are mere guides but each case be treated on its own facts.
– Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
– The awards should not be inordinately low or high, see Boniface Waiti & Another –v– Michael Kariuki Kamau (2007) eKLR.
I do not find any evidence to show that the trial court acted on wrong principles or that it took into account matters which it ought not to have or left out matters that it ought to have considered. The decision on quantum of general damages is sound and I find no reason to disturb the same.
On the award for diminished earning capacity, the court of appeal expressed itself on when an award under diminished earning capacity should be made. The court stated;
“It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of future earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. The characteristics of an award for loss of earning capacity and the principles on which it is assessed were considered more comprehensively in Moeliker v A. Reyrolle & Co. Ltd [1977] 1 WLR 132 . In that case, Brownie LJ said on page 140, paragraph B;
“This head of damages generally only arises where the plaintiff is at the time of trial in employment, but there is a risk that he may lose this employment at some time in future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well-paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial”
The trial court found as a fact that the respondent was engaged in the same enterprise, save that the earnings had reduced. From the evidence on record, there is no nexus between the reduced earnings and the injury sustained by the respondent. It is not clear how the injury has put her in a disadvantage that would result into diminished earnings. I find that the award for diminished earning was not grounded on evidence placed before court and was erroneously made. The said award is accordingly set aside.
As regards special damages, the same were properly pleaded and specifically proved as required. I find no reason to interfere with the said award.
For the reasons I have stated, the appeal on liability is dismissed. The appeal on quantum is allowed to the extent that the award for diminished earning capacity is set aside. The other awards remain as stated by the trial court. The appellant having succeeded only to a limited extent, I make no order as to costs. The respondent shall have costs before the trial court.
DATED, SIGNED AND DELIVERED THIS 14 th JULY 2026
D.O. ONYANGO
JUDGE
2