Skip to content
JudgmentJOSEPHINE CHIZI BEBORA VS HAMISI MOHAMED MAMBO13 min read

JOSEPHINE CHIZI BEBORA VS HAMISI MOHAMED MAMBO

High Court at Mombasa High Court · · Odera Teresa Achieng


(Being an appeal from the judgment and Decree of Honourable Z. K. Kiongo, Resident magistrate delivered in Kwale Principal Magistrate Court Civil Case No. E065 of 2022 on 24th May, 2023


  1. Josephine Chizi Bebora the above named appellant,  appealed  to this Court against the liability and quantum of damages of the above said judgment and decree of Honourable Z.K. Kiong’o Resident magistrate delivered in Kwale Principal Magistrate Court Civil Case no. E066 OF 2022 ON 24TH May, 2023 on the following grounds as set out in the Amended Memorandum of Appeal:

a.That the learned trial magistrate erred in law and in fact in holding that the plaintiff had proved his case of negligence by failing to appreciate the proximate cause of the accident and the doctrine of causation and blameworthiness.

  1. The learned Judge trial magistrate erred in law and in fact in holding that the Plaintiff had proved her case on the required standard and that the Defendant was solely to blame for the accident contrary to the testimony of PW3, DW1 and the entirety of evidence on record thereby arriving at an erroneous and legally unsustainable decision.
  2. That the learned trial magistrate erred in law and in fact by holding the Defendant was 100% liable contrary to the weight of evidence on record, considered extraneous and irrelevant factors, misunderstand and misapplied the correct law on causation and blameworthiness.
  3. That the learned trial magistrate erred in fact and in law in assessment of general damages by arriving at a sum that was inordinately high, excessive in the circumstances, unsuitable in law hence occasioning a miscarriage of justice.
  4. That the learned trial magistrate applied the wrong principles of law by taking into account some irrelevant factors and leaving out of account some relevant factors hence arrived at an award that was erroneous.
  5. That the learned trial magistrate erred in law and in fact in arbitrarily awarding general damages by failing to consider judicial precedent of comparable injuries should attract comparable awards arrived at an assessment of damages that was erroneous.
  6. That the learned trial magistrate erred in law and misdirected himself relying in hearsay evidence to hold the respondent had proved his case.

REASONS WHEREOF the appellants pray that the appeal be allowed with costs and the following orders made: -

  1. That the quantum of damages in the judgment of Honourable Z.K Kiong’o, Resident Magistrate delivered in Kwale Principal Magistrate Court Civil Case Number E066 of 2022 on 24th May, 2023 be set aside and replaced with an order setting aside liability against the Appellant and the suit against the Appellant herein be dismissed with costs.
  2. That costs in this appeal be awarded to the Appellant.
  3. That the damages assessed for pain suffering and loss of amenities be replaced with an order assessing the same downwards.
  4. This is a first  appellate court  whose duty is to re-evaluate the evidence on record and arrive at its own conclusion bearing in mind that it had no opportunity to see the witnesses while testifying as held in the case of Sielle vs Automobile Limited EA 1963
  5. The facts of this case are that on 11.9.21   the appellant motor vehicle registration no . KBY 870 P was being carelessly driven along Kwale – Kombeli road at Vinuni area causing it to collide with the road when it collide with  motor cycle registration no. KMDP 593 P on which the respondent was a pillion passenger.  Under  the particulars of negligence  of the part of the appellant his driver or servant , it was pleaded that the vehicle veered from its lane and went  to the lane of the motor cycle . in his evidence the plaintiff told the court that the motor vehicle was carelessly driven and thus it hit the motor cycle he was riding on from behind. The appellant’s case is that the motor cycle encroached on his  vehicle’s lane and hit the right front tyre of the  vehicle and he swerved to the left .  It blamed the rider for the accident .
  6. The case proceeded by way of written Submissions . The appellant submitted that this being the first appellate court it has a duty to re-evaluate the evidence adduced in the lower court and arrive at its own decision bearing in mind that it neither saw nor heard the witnesses .
  7. Also that the respondent had a duty to prove negligence  in this case  and cited Moris Njagi and Another vs. Beatrice Wanjiku and Treadster Tyres Limited vs John Wekesa Wepukhulu (2010) Eklr to support this point. It was also submitted that the learned magistrate could not unequivocally state who was liable for the accident to wit that ‘’ I find in the contrary as there were indeed at least 3 identifiable witnesses being Pw2,Dw1 and the Pillion passenger on KMDQ. The plaintiff for no reason advanced before the court failed to represent the said pillion passenger as a witness to help determine he issue of liability .

Based on the evidence of PW1 and Dw1 it becomes a tie ad it would be unfair to take the version of either as the truth against.

the other without corroboration’’

Further that had the magistrate stop there then the cases should have been dismissed and cited the case of where it was held that ‘’ Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:

“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-

“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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.

This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

  1. On evidence of police officer and  abstract counsel submitted that the police abstract showed that the case was pending investigations  and therefor Could not be used  a basis for determining liability . He cited the  case of Florence Mutetu Musembi &Geofrey Kimiti vs Francis Kerenge (2021)eKLR where it was held ‘’ that  police abstract is merely evidence that a report of a accident has been made . Unless it contains information regarding the investigation and their outcome , such evidence investigations and their outcome such evidence cannot without more be evidence of negligence …………………..there was no information regarding the outcome of the investigations which was indicated regarding the outcome of the investigations which was indicated to be still pending . that documents could not therefore be a basis for finding liability on the part of the respondents’’.

Also that the trial court indicate that the sketch map  was produced which was not true and that even if it was produced then it would have no probative value as the police abstract did not assist  the court . also that the scene had been interfered with as per the judgment of the lower court. It was submitted that the Learned Trial Magistrate relied on a point of impact given by PW3 who did not visit the scene. ‘it was submitted that the respondent said he blamed the river of KBY for knocking him from behind . also that parties are bound by their pleadings as was held in the case of Galaxy paint Co, limited vs Falcon Guards limited Civil appeal no.219 of 1998 .

  1. Counsel also submitted that this is an appeal against the assessment of damages which is an exercise of discretion and that there must be sufficient grounds, circumstances  and principles ………………….. ‘’.

In the court of Appeal in the case of Gitobu Imanyara And 2 others versus the Attorney general (2016)eKLR)where it was held that ‘’  in order to justify reversing the trial judge on the question of the amount of damages it would be convinced that the amount awarded was so extremely high or so very low as to make it in the judgment of this court , an entirely erroneous estimate of the damages. It was submitted that the respondent sustained the following injuries as per page 173 of Record of Appeal namely ;-

  1. Segmental fracture right femur with bone displacement .
  2. Post traumatic arthritis and stiffness right hip and right knee joint.
  3. Fracture of right mid -shaft ulna bone
  4. Post traumatic stiffness of the right elbow and right wrist .
  5. Dislocation of left shoulder with post-traumatic arthritis right shoulder  .

The respondent submitted that the appeal does not raise any arguable issues on liability . the  respondents vehicle veered off to the lane of the motor cycle and hit them and that pw3 in the sketch plan found that the point of impact was on the lane of the motor  cycle .  Further that no evidence was adduced by appellant to counter the evidence of PW3 on liability .

  1. On quantum counsel submitted that no grounds have been  established to warrant disturbance of the award on quantum .  it was submitted that the by the respondent that he sustained

iSegmental fracture right femur with bone displacement .

  1. Post traumatic arthritis and stiffness right hip and right knee joint.Fracture of right mid -shaft ulna bone
  2. Post traumatic stiffness of the right elbow and right wrist .
  3. Dislocation of left shoulder with post-traumatic arthritis right shoulder  . also that he sustained resultant 25%  disability .

They prayed  that the appeal be dismissed .

  1. I have carefully re-evaluate the entire evidence on record and the issues for determination are as follows ;
  2. Whether the respondent proved liability against the appellant  on a balance of probability .
  3. Whether the appellant has established sufficient grounds for disturbing the award of general damages . on the issue of Liability , the respondent in his plaint pleaded that the accident occurred when appellant’s vehicle lost control and went to his lane. In his witness statement it is indicated that the vehicle was oncoming  and hit them on their lane .
  4. On whether liability was proved against the appellant on a balance of probability , Pw2 said that the they were from Mombasa heading to towards Kwale while the appellant was from Kwale direction towards Mombasa when the motor vehicle lost control and encroached on their lane and hit the motor cycle he was in on the right side . plaintiff said he blames the driver for the accident as when he negotiated a corner he maintained his lane and hit him  . The driver of the motor vehicle told the court that the motorcycle veered to his lane and hit his vehicle on the right  side . The inspection reports also indicate that both vehicles had damages on the right side and the head lamp of the motor  cycle was also damaged . There is no doubt that the accident occurred . on causation of the accident , PW3 said that the point of impact was on the lane of the motor cycle as per the police file which he referred to but  did not produce . The police abstract also indicates that the case was pending investigations . appellant submitted that the evidence of PW3 was merely to show that the accident was reported but not the blameworthiness of appellant and that the point of impact was not proved as the sketch plan was not produced . Also that the Trial magistrate has no capacity to draw the rough sketch plan which is on record .   The respondent had the burden to prove their case on a balance of probabilities  as was held in the above cited Florence case . on the probative value of the police abstract it was submitted that since it indicates that the case was pending investigations and that   the sketch plan was not produced then it only confirms that the accident occurred and not liability . The sketch drawn by the Magistrate is not part of evidence and cannot be used as such and so it has no evidential value . It is not clear why the sketch plan of the scene which was in court was not produced . the same would have assisted the court to determine the probable point of impact since each party insists that the scene was  on their respective lanes.  It was submitted that the  evidence of plaintiff   and the pleadings are also at variance in that while respondent   pleaded that it was a head-on collision while the  the evidence of respondent revealed that they were hit from behind. It is trite law the parties are bound by their pleadings as was held in the case of (Supra ) . However I have not seen any pleadings that the vehicle hit the respondent from behind . The pleadings indicate  that there was  a collision . In his statement and evidence  the respondent said that their vehicle collided with that of the appellant.
  5. The trial magistrate in his judgment stated that ‘’ I find in the contrary as there were indeed at least 3 identifiable witnesses being Pw2,Dw1 and the Pillion passenger on KMDQ. The plaintiff for no reason advanced before the court failed to represent the said pillion passenger as a witness to help determine the issue of liability .

Based on the evidence of PW1 and Dw1 it becomes a tie and it would be unfair to take the version of either as the truth against.

the other without corroboration’’ .

  1. I find that since the sketch plans was available in court and were  not produced wit, this court can safely infer that had the same been produced then they contents would have been adverse to the case of respondent . Though the trial Magistrate said that the evidence of respondent was unshaken ,  the same was not sufficient in the absence of the sketch plans and the pillion passenger .  The learned Trial Magistrate thus erred when he contradicted himself in holding  that the evidence was insufficient to determine who was to blame for the accident since crucial witnesses were not called by respondent and also finding that the appellant was 100% liable for the accident. In the circumstances  . It is clear that the proximate cause of the accident was as per the testimony of Dw1 supported by the motor vehicle inspection report is that the motor cycle hit appellants vehicle on the  right side wheel causing it  to loose control as the driver tried the swerve and it veered  off the road and hit them.   I find that the motor cycle was 100 % liable for the accident . the appellant was thus not to blame for the accident .

o

  1. Had the case passed the test of liability I would have determined quantum . The principles on which the court can disturb the award of the lower court were laid down in the court of Appeal in the case of Gitobu Imanyara And 2 others versus the Attorney general (2016)eKLR)where it was held that ‘’  in order to justify reversing the trial judge on the question of the amount of damages it would be convinced that the amount awarded was so extremely high or so very low as to make it in the judgment of this court , an entirely erroneous estimate of the damages to which page 173 ‘’
  2. This case the respondent sustained the following injuries
  3. Segmental fracture right femur with bone displacement .
  4. Post traumatic arthritis and stiffness right hip and right knee joint.
  5. Fracture of right mid -shaft ulna bone
  6. Post traumatic stiffness of the right elbow and right wrist .
  7. Dislocation of left shoulder with post-traumatic arthritis right shoulder  .

There was also resultant  disability assessed at 25 % .

15.Having considered the nature of the injuries sustained by the respondent and the comparable injuries in the cited cases , the awards were neither too high nor too low and all the necessary factors. I have also seen the case of Achacha v Litunya (Civil Appeal E044 of 2021) [2022] KEHC 3332 (KLR) (30 June 2022) (Judgment)

Where the respondent sustained sustained head injury with loss of consciousness for 3 weeks, blunt injury to the left eye, fracture of the right humerus, fracture of the right femur, fracture of the left femur  and multiple cut wounds on both lower limbs. He had  resultant 40 % permanent disability and was awarded general damages in the sum of Kshs 1,200,000/= . The respondent in the said case sustained 3 fractures while in the instant case it was only one fracture and the permanent disability was assessed at Kshs 25 %. The award of general damages in the sum of Kshs .1,450,000/= awarded by the Learned  Trial Magistrate was thus excessive and I would award Kshs . 1000,000/=.

  1. The Appeal is thus allowed and thus the judgment of Hon Z Kiongo delivered in Kwale PMCC no 066 of 2021 is hereby set aside .
  2. Costs to the appellant in the sum of Kshs. 30,000/=. 

Right of appeal

Delivered virtually on teams platform in the presence of

Miss Juma for respondent .

Ken Kioko: I h/b for Jengo for appellant.


Juma : I am seeking a copy of the judgment and 30 days stay .

Order : granted.

T.A ODERA

JUDGE 24.4.24

    JOSEPHINE CHIZI BEBORA VS HAMISI MOHAMED MAMBO JOSEPHINE CHIZI BEBORA VS HAMISI MOHAMED MAMBO