( Being an appeal from the judgement of Hon. S.K Motari (RM) dated 25.9.2024 in Nairobi CMCC No. E2801 of 2022).
The respondent herein filed a suit against the appellants at the chief magistrate court vide a plaint dated 25.5.2022 and amended on 4.7.2023 in which the respondent (then plaintiff) sought for general damages, special damages, future medical expenses, loss of earnings, costs and interest.
The claim was on account of a road traffic accident, alleged to have occurred on the 1.1.2022 along Mwiki-Kasarani road involving motor vehicle KCK 959 L owned by the 2 nd appellant and managed by the 1 st appellant on the one hand and motorcycle registration KMFE 518Q on the other hand. The respondent was a pillion passenger on the latter motorcycle
The appellants had filed a defence dated 17.6.2022 denying the respondent’s claim. The matter was set down for hearing and the respondent testified and called one witness. The appellant did not adduce evidence.
In a judgement delivered on the 25.9.2024, the learned magistrate found in favour of the respondent, holding the appellants 100% liable in negligence and awarded the respondent Ksh 1,000,000 as general damages, Ksh 1,000,000 for future medical expenses and special damages of Ksh 44,225 with costs and interests.
Being dissatisfied with the judgement, the appellant filed this appeal setting out seven grounds of appeal. The appeal was disposed of by way of written submissions.
APPELLANTS SUBMISSIONS
The appellant submitted that the learned magistrate erred in law and in fact by holding that the defendants (appellants) were 100% liable in negligence contrary to the evidence before her. That the learned magistrate shifted the burden of proof to the appellants without making a determination that the plaintiff had discharged her burden. The appellants’ case is that the learned magistrate concluded that the appellants were liable without having satisfied itself that the testimony by the respondent was sufficient enough to merit a finding of liability on the part of the appellants. The appellant relied on the following case law to buttress their point;
*Bwire v Wayo &Saloki (2022) KEHC 7 (KLR)
*Mary Wanjiru v Lucy Njeri Munyua & Another (2020) eKLR
*Benter Atieno Obonyo v ANNE Nganga & Another (2021)
The appellant further submitted that the learned magistrate erred in law in awarding damages which were inordinately high and was therefore an erroneous estimate of damages. That the learned magistrate did not consider comparable cases as submitted by the appellants contrary to established principles of law.
The appellant also submitted that the learned magistrate erred in law and in fact in awarding Ksh 1,000,000 for future medical expenses yet the same was never substantiated as required by law and in particular that there was no evidence to support the award.
The appellant also faulted the learned magistrate’s award of Ksh. 44,500 as special damages when the same was not proved as required by law. The appellant cited the cases of Kirero v Kariuki (2025) KEHC 11099 (KLR) and Nangulu &2 others v Wekesa (2025) KEHC 10927 in support of their case on quantum of damages awardable to the respondent
RESPONDENT’S SUBMISSIONS
The respondent opposed the appeal. In their submission, the respondent stated that the learned magistrate correctly addressed her mind to the evidence placed before her on both liability and quantum. As regards liability, the respondent’s case is that the case laid out before the trial magistrate was not controverted. That there is nothing to show that the trial court ignored any evidence or misapprehended the facts.
As regards the award of damages, the respondent submitted that the trial court was guided by the principle that in the award of damages no two injuries are exactly alike and that comparable injuries should as far as possible be compensated by comparable awards.
The respondent further submitted that the trial court properly considered the law on special damages and that regarding future medical expenses.
ANALYSIS AND DETERMINATION
This being a first appeal, I am required to re-evaluate and re-analyse the evidence on record before the trial court and reach my own conclusion while bearing in mind that I did not have the benefit of listening and watching the witnesses testify.
In Gitobu Imanyara & 2 Others -v- Attorney General [2016] KECA 557 (KLR) the court of appeal held:
‘This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.’
I will therefore reconsider the evidence which had been placed before the trial court and ascertain whether the findings of the trial court were based on evidence. However, as guided by the finding in Ephantus Mwangi& Another -v- Duncan Mwangi Wambungu (1982-1988) 1 KAR 278 , as an appellate court, I will not interfere with factual findings of the trial court unless they are based on no evidence, or the trial magistrate is shown to have misapprehended the evidence or acted on wrong principles.
As regards liability, during the hearing before the trial court, the respondent testified that she was a pillion passenger on a motorcycle along Mwiki-Kasarani road while the appellants motor vehicle was at a T-junction joining Mwiki-Kasarani road. That the appellant's driver, without warning or any form of indication, joined the road when it had no right of way and thereby collided with the motorcycle that the appellant was riding on. The respondent sustained injuries which were classified as grievous harm. The respondent called a witness known as PC James Kiogora (PW2). He testified and stated that he was a police officer who at the material time was attached to Mwiki police station where the accident was reported. His evidence was that the accident occurred when the appellants’ motor vehicle joined the road (Mwiki-Kasarani) without giving way and waiting for other road users who had a right of way to pass and in the process caused injuries to the respondent. PW2 puts blame squarely on the appellants. The appellants despite having filed defence and a witness statement, chose not to call any witness.
It is against the foregoing background that the trial court found the appellants 100% liable in negligence.
It is well established in our jurisprudence that in civil cases, the standard of proof required is on a balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru J (as he then was) in William Kabogo Gitau -v- George Thuo & 2 others (2010) 1 KLR 526 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 opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred”
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 in 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.”
Confronted with the evidence of the respondent and her witness which indisputably placed blame on the appellants for the accident of 1.1.2022, the learned magistrate had no difficulty finding the appellants culpable in negligence. Contrary to the assertion that she shifted the burden to the appellant, the learned magistrate rendered herself thus:
“The testimony on the circumstances of the occurrence of the subject accident remain unrebutted as the defence did not call any witness or produce any document on liability. The defence thus failed to discharge their evidentiary burden of proof that shifted to them after the plaintiff’s witness testified and produced exhibits on liability as regards the 1st defendant.”
The learned magistrate correctly appreciated that what had shifted was the evidentiary burden, particularly as the respondent (plaintiff) had placed before court cogent and uncontroverted evidence which clearly showed the appellants to be culpable in negligence. The evidence that the 1st appellant while driving the 2 nd appellant’s motor vehicle registration number KCK 959L, drove on the path of motorcycle registration number KMFE 518Q, on which the respondent was, without giving any indication and when it had no such right of way is proof enough that the 1st appellant as a driver was negligent and the 2 nd respondent is vicariously held liable.
I find the finding of the trial court on liability to have been grounded on evidence and have no reason to upset the same.
As regards quantum of damages, the circumstances under which an appellate court will interfere with the award of a trial court are well settled. In the case of Catholic Diocese of Kisumu -v- Tete (2004) eKLR the court of appeal held as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” (see Kemfro -v- A.M Lubia & Olive Lubia (1982-88) 1KAR 727 and Kitavi -v- Coast Bottlers Limited (1985) KLR 470)
I have carefully evaluated the learned magistrate’s finding on general damages. She considered the injuries suffered by the plaintiff (respondent), the medical reports by two doctors produced in court and cited relevant case law including the cases of Gichure & Another -v- Muthengi(2023) KLR and the case of Migeke -v- Chomba & Another (2024) KLR. She considered the percentage of disability suffered by the plaintiff. She also considered that some of the cases cited had more severe injuries than that of the respondent. Lastly, she considered the age of the case law cited and the rate of inflation.
On my part, I have considered the case law cited by the appellants counsel including the case Kirero -v- Kariuki KEHC 11099(KLR) and Nangule & 2 others -v- Wekesa (2025) KEHC 10927 (KLR). I have further considered the case law cited by the respondent including the cases of Damaris Wamucii Kagechu -v- Joseph Kirui & Another (2019) KEHC 1837 (KLR) and Ngare -v- Kiai (2023) KEHC 24212(KLR) . I do not find any error in the award for general damages for pain and suffering.
As regards the award of Ksh 1,000,000 for future medical expenses, I have considered the case of Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR, as cited by the appellants.
I am guided by the decision of the court of appeal in Tracom Limited & Another -v- Hassan Mohamed Adan (2016) KECA 150 (KLR) where the court stated:
“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.”
Further in the case of Kenya Bus Services Limited -v- Gituma (2004) 1 EA 91 the court stated:
“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”
From the record, the respondent pleaded for future medical expenses in the amended plaint. A medical report by Dr. Wokabi clearly indicated that the respondent would require medical intervention for the injuries. A report by Dr. Adegu William Jacob produced at the instance of the appellants indicated as follows:
‘…However, the ability to walk without support may require intervention. The left leg bone loss will also require intervention. These procedures may cost between Ksh 750,000 and 900,000 in a modest cost facility.’
The trial court’s finding on future medical expenses was grounded on the evidence placed before her and I have no reason to decide otherwise.
As regards the award for special damages, it is trite law that special damages must be specifically pleaded and proved. The plaintiff pleaded for a sum of Ksh 81,231 as special damages. The record shows that receipts totaling to Ksh 44,500 were produced as exhibits. The trial court carefully evaluated the evidence and reached this conclusion.
This court comes to an inevitable conclusion that the appeal lacks merit and it is accordingly dismissed in entirety.
On the issue of costs, the court of appeal in the case of Farah Awad Gullet v. CMC Motors Group Limited (2018) KECA 158 (KLR) had this to say:
“It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning. Secondly, a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.’
I have no reason to deny the respondent costs.
Determination
The upshot of the foregoing is that I make the following orders.
(a) The appeal is dismissed with costs.
(b) There be stay of execution for 30 days.
(c) The file is closed.
DATED, SIGNED AND DELIVERED THIS 22nd JULY 2026
D.O. ONYANGO
JUDGE
2
The respondent herein filed a suit against the appellants at the chief magistrate court vide a plaint dated 25.5.2022 and amended on 4.7.2023 in which the respondent (then plaintiff) sought for general damages, special damages, future medical expenses, loss of earnings, costs and interest.
The claim was on account of a road traffic accident, alleged to have occurred on the 1.1.2022 along Mwiki-Kasarani road involving motor vehicle KCK 959 L owned by the 2 nd appellant and managed by the 1 st appellant on the one hand and motorcycle registration KMFE 518Q on the other hand. The respondent was a pillion passenger on the latter motorcycle
The appellants had filed a defence dated 17.6.2022 denying the respondent’s claim. The matter was set down for hearing and the respondent testified and called one witness. The appellant did not adduce evidence.
In a judgement delivered on the 25.9.2024, the learned magistrate found in favour of the respondent, holding the appellants 100% liable in negligence and awarded the respondent Ksh 1,000,000 as general damages, Ksh 1,000,000 for future medical expenses and special damages of Ksh 44,225 with costs and interests.
Being dissatisfied with the judgement, the appellant filed this appeal setting out seven grounds of appeal. The appeal was disposed of by way of written submissions.
APPELLANTS SUBMISSIONS
The appellant submitted that the learned magistrate erred in law and in fact by holding that the defendants (appellants) were 100% liable in negligence contrary to the evidence before her. That the learned magistrate shifted the burden of proof to the appellants without making a determination that the plaintiff had discharged her burden. The appellants’ case is that the learned magistrate concluded that the appellants were liable without having satisfied itself that the testimony by the respondent was sufficient enough to merit a finding of liability on the part of the appellants. The appellant relied on the following case law to buttress their point;
*Bwire v Wayo &Saloki (2022) KEHC 7 (KLR)
*Mary Wanjiru v Lucy Njeri Munyua & Another (2020) eKLR
*Benter Atieno Obonyo v ANNE Nganga & Another (2021)
The appellant further submitted that the learned magistrate erred in law in awarding damages which were inordinately high and was therefore an erroneous estimate of damages. That the learned magistrate did not consider comparable cases as submitted by the appellants contrary to established principles of law.
The appellant also submitted that the learned magistrate erred in law and in fact in awarding Ksh 1,000,000 for future medical expenses yet the same was never substantiated as required by law and in particular that there was no evidence to support the award.
The appellant also faulted the learned magistrate’s award of Ksh. 44,500 as special damages when the same was not proved as required by law. The appellant cited the cases of Kirero v Kariuki (2025) KEHC 11099 (KLR) and Nangulu &2 others v Wekesa (2025) KEHC 10927 in support of their case on quantum of damages awardable to the respondent
RESPONDENT’S SUBMISSIONS
The respondent opposed the appeal. In their submission, the respondent stated that the learned magistrate correctly addressed her mind to the evidence placed before her on both liability and quantum. As regards liability, the respondent’s case is that the case laid out before the trial magistrate was not controverted. That there is nothing to show that the trial court ignored any evidence or misapprehended the facts.
As regards the award of damages, the respondent submitted that the trial court was guided by the principle that in the award of damages no two injuries are exactly alike and that comparable injuries should as far as possible be compensated by comparable awards.
The respondent further submitted that the trial court properly considered the law on special damages and that regarding future medical expenses.
ANALYSIS AND DETERMINATION
This being a first appeal, I am required to re-evaluate and re-analyse the evidence on record before the trial court and reach my own conclusion while bearing in mind that I did not have the benefit of listening and watching the witnesses testify.
In Gitobu Imanyara & 2 Others -v- Attorney General [2016] KECA 557 (KLR) the court of appeal held:
‘This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.’
I will therefore reconsider the evidence which had been placed before the trial court and ascertain whether the findings of the trial court were based on evidence. However, as guided by the finding in Ephantus Mwangi& Another -v- Duncan Mwangi Wambungu (1982-1988) 1 KAR 278 , as an appellate court, I will not interfere with factual findings of the trial court unless they are based on no evidence, or the trial magistrate is shown to have misapprehended the evidence or acted on wrong principles.
As regards liability, during the hearing before the trial court, the respondent testified that she was a pillion passenger on a motorcycle along Mwiki-Kasarani road while the appellants motor vehicle was at a T-junction joining Mwiki-Kasarani road. That the appellant's driver, without warning or any form of indication, joined the road when it had no right of way and thereby collided with the motorcycle that the appellant was riding on. The respondent sustained injuries which were classified as grievous harm. The respondent called a witness known as PC James Kiogora (PW2). He testified and stated that he was a police officer who at the material time was attached to Mwiki police station where the accident was reported. His evidence was that the accident occurred when the appellants’ motor vehicle joined the road (Mwiki-Kasarani) without giving way and waiting for other road users who had a right of way to pass and in the process caused injuries to the respondent. PW2 puts blame squarely on the appellants. The appellants despite having filed defence and a witness statement, chose not to call any witness.
It is against the foregoing background that the trial court found the appellants 100% liable in negligence.
It is well established in our jurisprudence that in civil cases, the standard of proof required is on a balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru J (as he then was) in William Kabogo Gitau -v- George Thuo & 2 others (2010) 1 KLR 526 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 opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred”
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 in 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.”
Confronted with the evidence of the respondent and her witness which indisputably placed blame on the appellants for the accident of 1.1.2022, the learned magistrate had no difficulty finding the appellants culpable in negligence. Contrary to the assertion that she shifted the burden to the appellant, the learned magistrate rendered herself thus:
“The testimony on the circumstances of the occurrence of the subject accident remain unrebutted as the defence did not call any witness or produce any document on liability. The defence thus failed to discharge their evidentiary burden of proof that shifted to them after the plaintiff’s witness testified and produced exhibits on liability as regards the 1st defendant.”
The learned magistrate correctly appreciated that what had shifted was the evidentiary burden, particularly as the respondent (plaintiff) had placed before court cogent and uncontroverted evidence which clearly showed the appellants to be culpable in negligence. The evidence that the 1st appellant while driving the 2 nd appellant’s motor vehicle registration number KCK 959L, drove on the path of motorcycle registration number KMFE 518Q, on which the respondent was, without giving any indication and when it had no such right of way is proof enough that the 1st appellant as a driver was negligent and the 2 nd respondent is vicariously held liable.
I find the finding of the trial court on liability to have been grounded on evidence and have no reason to upset the same.
As regards quantum of damages, the circumstances under which an appellate court will interfere with the award of a trial court are well settled. In the case of Catholic Diocese of Kisumu -v- Tete (2004) eKLR the court of appeal held as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” (see Kemfro -v- A.M Lubia & Olive Lubia (1982-88) 1KAR 727 and Kitavi -v- Coast Bottlers Limited (1985) KLR 470)
I have carefully evaluated the learned magistrate’s finding on general damages. She considered the injuries suffered by the plaintiff (respondent), the medical reports by two doctors produced in court and cited relevant case law including the cases of Gichure & Another -v- Muthengi(2023) KLR and the case of Migeke -v- Chomba & Another (2024) KLR. She considered the percentage of disability suffered by the plaintiff. She also considered that some of the cases cited had more severe injuries than that of the respondent. Lastly, she considered the age of the case law cited and the rate of inflation.
On my part, I have considered the case law cited by the appellants counsel including the case Kirero -v- Kariuki KEHC 11099(KLR) and Nangule & 2 others -v- Wekesa (2025) KEHC 10927 (KLR). I have further considered the case law cited by the respondent including the cases of Damaris Wamucii Kagechu -v- Joseph Kirui & Another (2019) KEHC 1837 (KLR) and Ngare -v- Kiai (2023) KEHC 24212(KLR) . I do not find any error in the award for general damages for pain and suffering.
As regards the award of Ksh 1,000,000 for future medical expenses, I have considered the case of Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR, as cited by the appellants.
I am guided by the decision of the court of appeal in Tracom Limited & Another -v- Hassan Mohamed Adan (2016) KECA 150 (KLR) where the court stated:
“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.”
Further in the case of Kenya Bus Services Limited -v- Gituma (2004) 1 EA 91 the court stated:
“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”
From the record, the respondent pleaded for future medical expenses in the amended plaint. A medical report by Dr. Wokabi clearly indicated that the respondent would require medical intervention for the injuries. A report by Dr. Adegu William Jacob produced at the instance of the appellants indicated as follows:
‘…However, the ability to walk without support may require intervention. The left leg bone loss will also require intervention. These procedures may cost between Ksh 750,000 and 900,000 in a modest cost facility.’
The trial court’s finding on future medical expenses was grounded on the evidence placed before her and I have no reason to decide otherwise.
As regards the award for special damages, it is trite law that special damages must be specifically pleaded and proved. The plaintiff pleaded for a sum of Ksh 81,231 as special damages. The record shows that receipts totaling to Ksh 44,500 were produced as exhibits. The trial court carefully evaluated the evidence and reached this conclusion.
This court comes to an inevitable conclusion that the appeal lacks merit and it is accordingly dismissed in entirety.
On the issue of costs, the court of appeal in the case of Farah Awad Gullet v. CMC Motors Group Limited (2018) KECA 158 (KLR) had this to say:
“It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning. Secondly, a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.’
I have no reason to deny the respondent costs.
Determination
The upshot of the foregoing is that I make the following orders.
(a) The appeal is dismissed with costs.
(b) There be stay of execution for 30 days.
(c) The file is closed.
DATED, SIGNED AND DELIVERED THIS 22nd JULY 2026
D.O. ONYANGO
JUDGE
2