Introduction and Background
1. The Appellant is dissatisfied with the subordinate court’s judgment dated 18 th September 2024 where she was found 100% liable for an accident that occurred on 17 th February 2023 along Nairobi-Mombasa Road at Astrol area involving the Respondent who was a pillion passenger in a motor cycle registration number KMEY ***S and the Appellant’s motor vehicle registration number KCD ***Y. The Respondent was awarded inter alia general damages of Kshs. 550,000.00 and future medical expenses of Kshs. 200,000.00 and the Appellant is also aggrieved with these awards.
2. Through her Memorandum of Appeal dated 7 th November 2024, the Appellant avers that the learned trial magistrate erred by failing to adequately consider her evidence and submissions, in finding the Respondent had proved his case on liability at 100%, as the evidence on record did not support such a finding and in awarding excessive general damages and future medical expenses. That the judgment was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of law and the Appellant prays that the judgment on liability be set aside and substituted with an order dismissing the Respondent's case with costs to the Appellant, the award of general damages and future medical expenses be set aside and the costs of the Appeal be awarded to the Appellant.
3. The court directed that the appeal be canvassed by way of written submissions but only those of the Appellant are on record. I have considered the same together with the record and I will be making relevant references to them in my analysis and determination below.
Analysis and Determination
4. In determining this appeal, I am mindful of the role of the first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance and at the same time, keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
5. As stated, the Appellant is aggrieved with the trial court’s findings of both liability and quantum of damages awarded. On liability, a court’s finding and assessment is dependent on the facts and evidence available and the court considers causation and blameworthiness. This was held by the Court of Appeal in Isabella Wanjiru Karanja v Washington Malele [1983] KECA 72 (KLR) where it was stated:
There are two elements in the assessment of liability, namely causation and blameworthiness. See Baker v Willoughby// [1970] AC 467. In my opinion there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. I would not disagree with the learned judge’s finding that the appellant’s speed was excessive in the circumstances, but the failure to keep a proper look out would seem to be the predominant factor.
6. Going through the record, I would not fault the trial court’s finding of 100% liability against the Appellant for a number of reasons. The evidence by the Respondent and the police officer who testified (PW 2) was uncontroverted that the Respondent was a passenger on the motorcycle. Authorities have held time and again that there is nothing a pillion passenger could do to prevent an accident form carrying since he does not have control over the motor cycle (see Wahinya v Lucheveleli [2022] KEHC 13762 (KLR)] . The court in Wahinya(supra) went on to cite Halsbury’s Law of England volume 78 (2018) at para. 20 which reads as follows:
“It is a question of fact whether the defendant has failed to show reasonable care in the particular circumstances. The law lays down the general rules which determine the standard of care which has to be attained, and it is for the court to apply that legal standard of care to its findings of fact so as to decide whether the defendant has attained that standard. The legal standard is objective; it is not that of the defendant himself, but that which might be expected from a person of ordinary prudence, or person of ordinary care and skill, engaged in the type of activity in which the defendant was engaged.”
7. A pillion passenger has no control over the motorcycle and cannot be held liable for the rider's negligence. The passenger's only duty is to be lawfully on the road, which the Respondent stated he was. The Appellant's own Defence stated that she "…will in due course apply for leave to join the owner of the said motor cycle... as a Third Party” but she never did. This left the trial court with only two parties; the injured passenger and the driver of the Appellant’s motor vehicle and the learned trial magistrate correctly noted that the Appellant had the right to enjoin the rider but failed to do so, meaning she assumed the risk of bearing full liability.
8. Whereas the Appellant submits that the Respondent admitted he fainted and did not see the accident, this does not automatically mean the Respondent failed to prove his case. The Respondent's evidence was that the motor cycle was hit from the rear. The Appellant's own testimony was contradictory. She first stated that the motorcycle was ahead of her and indicated as if it was about to enter the petrol station. She then stated the motorcycle "rammed" her on the opposite side from the front, but also admitted there was another car turning ahead of her. In my view, the existence of a third car and the damage being on the front of her vehicle suggests she may have been overtaking or maneuvering unsafely. In any case, there was no blame that could be attached on the Respondent as a pillion passenger.
9. While the Appellant is correct to submit that the legal burden rested on the Respondent under section 107 of the Evidence Act , he provided a plausible account being hit from the rear which was not definitively rebutted by the Appellant's conflicting narrative. The police abstracts were also inconclusive because one blamed the rider and another stated "pending investigations" and in civil cases, proof is on a balance of probabilities. The fact that the Appellant was a passenger who was injured, combined with the Appellant’s failure to enjoin the rider and her contradictory testimony, makes the trial court's finding of 100% liability reasonable. I find no reason to disturb this finding on liability.
10. Turning to the issue of quantum, the general principles upon which an appellate court can interfere with an award of damages was stated in the case of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 as follows:
An appellate court will not disturb an award of 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 inordinately high or low.
11. The Supreme Court, in Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) endorsed the decision of the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) where it was held as follows:
‘‘The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.’’
12. The apex court also cited with approval the decision of the Supreme Court of the UK in Robert Perekebena Naidike vs The Attorney General of Trinidad and Tobago, [2004] UKPC 49 where it was stated that:
‘‘A court of appeal must be satisfied that: the trial judge either misdirected himself/herself on the relevant facts of law (took irrelevant facts into consideration or ignored relevant (emphasis added) one or misinterpreted or misapplied some relevant legal principle), or the trial judge’s assessment of damages is a ‘wholly erroneous estimate.’’
13. A court should further be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Nyamete & another v Ogutu [2024] KEHC 2639 (KLR) . The Respondent pleaded that he had suffered a compound(open) fracture of the right tibia/fibular as a result of the injuries. I find that the trial court was properly guided by this court’s decisions in Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] KEHC 3995 (KLR) and Harun Muyoma Boge v Daniel Otieno Agulo [2015] KEHC 5660 (KLR) where compound fractures attracted awards of between Kshs. 300,000 – Kshs. 400,000.00. I agree with the learned trial magistrate that adjusting for inflation, similar injuries would attract an award of around or upwards of Kshs. 500,000.00 in today’s economy and I find that the award of Kshs. 550,000.00 is reasonable in the circumstances. I see no reason to disturb this finding.
14. On future medical expenses, the trial magistrate awarded the full Kshs. 200,000 as estimated by the Respondent’s doctor, Dr. Mwaura in his report dated 5 th June 2023 with the trial court stating "… there is no contrary comparative report ." Going through the record, this statement is factually incorrect because the Appellant produced a medical report from Mr. Wokabi who stated that the estimate of Kshs. 200,000 was "…a bit on the higher side and not in accordance with subsidiary legislation, recommending Kshs. 80,000.00 for the removal of implants.
15. The learned trial magistrate either ignored or overlooked this piece of contradictory expert evidence. When there are two expert opinions on future medical costs, the court must weigh them and determine which of them tilts the scales of the parties’ case. The learned magistrate's failure to even mention the Appellant’s report on this issue constitutes a clear misdirection and misapprehension of the evidence. Considering both parties conceded that the implant was to be removed and at a cost, I will substitute and award the cost at Kshs. 80,000.00 as proposed by the Appellant.
Conclusion and Disposition
16. In the upshot, it is my finding that the Appellant’s appeal succeeds to the extent that the portion of the judgment of the subordinate court that awarded future medical expenses at Kshs. 200,000.00 is set aside and substituted with an award of Kshs. 80,000.00. The rest of the awards are affirmed and since the Respondent did not participate in this appeal, there is no order as to costs of this proceedings
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Tanui holding brief for Mr. Njuguna for the Appellant
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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1. The Appellant is dissatisfied with the subordinate court’s judgment dated 18 th September 2024 where she was found 100% liable for an accident that occurred on 17 th February 2023 along Nairobi-Mombasa Road at Astrol area involving the Respondent who was a pillion passenger in a motor cycle registration number KMEY ***S and the Appellant’s motor vehicle registration number KCD ***Y. The Respondent was awarded inter alia general damages of Kshs. 550,000.00 and future medical expenses of Kshs. 200,000.00 and the Appellant is also aggrieved with these awards.
2. Through her Memorandum of Appeal dated 7 th November 2024, the Appellant avers that the learned trial magistrate erred by failing to adequately consider her evidence and submissions, in finding the Respondent had proved his case on liability at 100%, as the evidence on record did not support such a finding and in awarding excessive general damages and future medical expenses. That the judgment was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of law and the Appellant prays that the judgment on liability be set aside and substituted with an order dismissing the Respondent's case with costs to the Appellant, the award of general damages and future medical expenses be set aside and the costs of the Appeal be awarded to the Appellant.
3. The court directed that the appeal be canvassed by way of written submissions but only those of the Appellant are on record. I have considered the same together with the record and I will be making relevant references to them in my analysis and determination below.
Analysis and Determination
4. In determining this appeal, I am mindful of the role of the first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance and at the same time, keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
5. As stated, the Appellant is aggrieved with the trial court’s findings of both liability and quantum of damages awarded. On liability, a court’s finding and assessment is dependent on the facts and evidence available and the court considers causation and blameworthiness. This was held by the Court of Appeal in Isabella Wanjiru Karanja v Washington Malele [1983] KECA 72 (KLR) where it was stated:
There are two elements in the assessment of liability, namely causation and blameworthiness. See Baker v Willoughby// [1970] AC 467. In my opinion there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. I would not disagree with the learned judge’s finding that the appellant’s speed was excessive in the circumstances, but the failure to keep a proper look out would seem to be the predominant factor.
6. Going through the record, I would not fault the trial court’s finding of 100% liability against the Appellant for a number of reasons. The evidence by the Respondent and the police officer who testified (PW 2) was uncontroverted that the Respondent was a passenger on the motorcycle. Authorities have held time and again that there is nothing a pillion passenger could do to prevent an accident form carrying since he does not have control over the motor cycle (see Wahinya v Lucheveleli [2022] KEHC 13762 (KLR)] . The court in Wahinya(supra) went on to cite Halsbury’s Law of England volume 78 (2018) at para. 20 which reads as follows:
“It is a question of fact whether the defendant has failed to show reasonable care in the particular circumstances. The law lays down the general rules which determine the standard of care which has to be attained, and it is for the court to apply that legal standard of care to its findings of fact so as to decide whether the defendant has attained that standard. The legal standard is objective; it is not that of the defendant himself, but that which might be expected from a person of ordinary prudence, or person of ordinary care and skill, engaged in the type of activity in which the defendant was engaged.”
7. A pillion passenger has no control over the motorcycle and cannot be held liable for the rider's negligence. The passenger's only duty is to be lawfully on the road, which the Respondent stated he was. The Appellant's own Defence stated that she "…will in due course apply for leave to join the owner of the said motor cycle... as a Third Party” but she never did. This left the trial court with only two parties; the injured passenger and the driver of the Appellant’s motor vehicle and the learned trial magistrate correctly noted that the Appellant had the right to enjoin the rider but failed to do so, meaning she assumed the risk of bearing full liability.
8. Whereas the Appellant submits that the Respondent admitted he fainted and did not see the accident, this does not automatically mean the Respondent failed to prove his case. The Respondent's evidence was that the motor cycle was hit from the rear. The Appellant's own testimony was contradictory. She first stated that the motorcycle was ahead of her and indicated as if it was about to enter the petrol station. She then stated the motorcycle "rammed" her on the opposite side from the front, but also admitted there was another car turning ahead of her. In my view, the existence of a third car and the damage being on the front of her vehicle suggests she may have been overtaking or maneuvering unsafely. In any case, there was no blame that could be attached on the Respondent as a pillion passenger.
9. While the Appellant is correct to submit that the legal burden rested on the Respondent under section 107 of the Evidence Act , he provided a plausible account being hit from the rear which was not definitively rebutted by the Appellant's conflicting narrative. The police abstracts were also inconclusive because one blamed the rider and another stated "pending investigations" and in civil cases, proof is on a balance of probabilities. The fact that the Appellant was a passenger who was injured, combined with the Appellant’s failure to enjoin the rider and her contradictory testimony, makes the trial court's finding of 100% liability reasonable. I find no reason to disturb this finding on liability.
10. Turning to the issue of quantum, the general principles upon which an appellate court can interfere with an award of damages was stated in the case of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 as follows:
An appellate court will not disturb an award of 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 inordinately high or low.
11. The Supreme Court, in Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) endorsed the decision of the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) where it was held as follows:
‘‘The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.’’
12. The apex court also cited with approval the decision of the Supreme Court of the UK in Robert Perekebena Naidike vs The Attorney General of Trinidad and Tobago, [2004] UKPC 49 where it was stated that:
‘‘A court of appeal must be satisfied that: the trial judge either misdirected himself/herself on the relevant facts of law (took irrelevant facts into consideration or ignored relevant (emphasis added) one or misinterpreted or misapplied some relevant legal principle), or the trial judge’s assessment of damages is a ‘wholly erroneous estimate.’’
13. A court should further be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Nyamete & another v Ogutu [2024] KEHC 2639 (KLR) . The Respondent pleaded that he had suffered a compound(open) fracture of the right tibia/fibular as a result of the injuries. I find that the trial court was properly guided by this court’s decisions in Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] KEHC 3995 (KLR) and Harun Muyoma Boge v Daniel Otieno Agulo [2015] KEHC 5660 (KLR) where compound fractures attracted awards of between Kshs. 300,000 – Kshs. 400,000.00. I agree with the learned trial magistrate that adjusting for inflation, similar injuries would attract an award of around or upwards of Kshs. 500,000.00 in today’s economy and I find that the award of Kshs. 550,000.00 is reasonable in the circumstances. I see no reason to disturb this finding.
14. On future medical expenses, the trial magistrate awarded the full Kshs. 200,000 as estimated by the Respondent’s doctor, Dr. Mwaura in his report dated 5 th June 2023 with the trial court stating "… there is no contrary comparative report ." Going through the record, this statement is factually incorrect because the Appellant produced a medical report from Mr. Wokabi who stated that the estimate of Kshs. 200,000 was "…a bit on the higher side and not in accordance with subsidiary legislation, recommending Kshs. 80,000.00 for the removal of implants.
15. The learned trial magistrate either ignored or overlooked this piece of contradictory expert evidence. When there are two expert opinions on future medical costs, the court must weigh them and determine which of them tilts the scales of the parties’ case. The learned magistrate's failure to even mention the Appellant’s report on this issue constitutes a clear misdirection and misapprehension of the evidence. Considering both parties conceded that the implant was to be removed and at a cost, I will substitute and award the cost at Kshs. 80,000.00 as proposed by the Appellant.
Conclusion and Disposition
16. In the upshot, it is my finding that the Appellant’s appeal succeeds to the extent that the portion of the judgment of the subordinate court that awarded future medical expenses at Kshs. 200,000.00 is set aside and substituted with an award of Kshs. 80,000.00. The rest of the awards are affirmed and since the Respondent did not participate in this appeal, there is no order as to costs of this proceedings
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Tanui holding brief for Mr. Njuguna for the Appellant
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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