1. The respondent herein filed a plaint dated 5th December 2020 in the chief magistrate's court in Mombasa, seeking special damages of Kes 4,550, general damages for pain, suffering, and loss of amenities, general damages for diminished earning capacity, the cost of medicines to manage the headache estimated at Kes 2,000 per year for one year, the cost of outpatient follow-up estimated at Kes 3,000 quarterly for three years, as well as costs and interest of the suit at the court rate.
2. The appellant opposed the suit. The Court below heard the matter on its merits. I will summarise the witnesses' evidence below.
3. During the trial, the respondent, then the plaintiff, called three witnesses.
4. PW1 was PC Sylvester Wabwire. PC Wabwire, who is attached to the Port Police Station and performs traffic duties, testified that an accident was reported vide OB14/07/08/2020 booked at 1210 hours. It was his testimony that on 7th August 2020 at 11:30 hrs, along Kilindini Road, a serious road traffic accident occurred involving a terminal tractor, registration no. TTT177/HTR270, driven by one Mohamed Said, an employee of the appellant, and a motorcycle registration no. KMEY 738B ridden by the respondent. The tractor driver, while overtaking a motorcycle, charged and struck the motorcycle rider, who was heading towards gate 10. Due to the impact, the motorcycle was extensively damaged, and the rider sustained a serious head injury and was rushed to Coast General Hospital, where he was admitted in serious condition. The tractor driver was overtaking carelessly. PC Wabwire testified that the driver of the terminal tractor was to blame for the accident.
5. In cross-examination, it was his evidence that he did not witness the accident, nor was he the investigating officer, and that the matter was pending investigation. He stated that there was no proof that the investigations had reached a conclusion; however, he had produced the OB and was also guided by the information in the abstract. He reiterated that the terminal tractor driver was to blame for the accident.
6. In re-examination, he told the court that the handwriting in the OB was legible and that the driver of the tractor was to blame for the accident.
7. The second witness for the respondent was Dr Daniel Wambua Kiema, who told the court that he was the author of the report dated 14th September 2020, produced as exhibit 9 and receipt as exhibit 10(a) and (b) respectively for Kes 2000 and Kes 5000.
8. When cross-examined, he stated that the plaintiff had suffered a head injury and also had post-traumatic stress disorder. He said that the headaches would be intermittent and that painkillers along with outpatient follow-up would manage them. He explained that he made a recommendation based on best practice and that the situation could improve or worsen.
9. In re-examination, he reiterated his findings on incapacity and stated that painkillers would manage the headache.
10. The last witness for the respondent was Joseph Valasa Mulwa. Mr Mulwa adopted his statement, along with the list and bundle of documents dated 5th December 2020. He stated that the accident occurred at 11:30 hours. At the time, it was raining. The accident happened on a straight stretch of road. He was injured, lost consciousness, and regained it after 8 hours. He testified that he has not fully healed, as he experiences pain most of the time and feels dizzy when it is hot. He prayed that he be granted the reliefs sought in the plaint.
11. In cross-examination, he told the court that at the time of the accident, there were no other vehicles and that there was a bend which was a bit far away. The motorcycle and the tractor collided, damaging the tractor's tyre. He said he was riding slowly and could not remember the speed limit. He also mentioned that he returned to work on 10th October 2020 and that the soft-tissue injuries have healed.
12. When re-examined, he testified that he has been given light duties due to injuries. The accident occurred on a straight road, as the corner was far ahead, and the tractor driver caused it.
13. The appellant called two witnesses. The first witness for the appellant, whom I shall refer to as DW1, Mohamed Fungo, is a driver with the appellant. He adopted his statement dated 24th August 2021 as his evidence-in-chief and blamed the plaintiff for the accident, stating that he overtook on the wrong side of the road.
14. In cross-examination, he stated that there were vehicles behind him that slowed down, and vehicles ahead of him as well, while the motorcycle emerged on the right. His indicator was on as he was turning right at the junction.
15. In re-examination, he stated that the motorcycle was on the left and intended to overtake on the right side. He also mentioned that there were four vehicles behind him.
16. DW2 David Ombee also adopted his statement as evidence in chief. He blamed the motorcycle driver because several other vehicles were behind the terminal tractor. As they approached a junction, he slowed, and all other vehicles slowed to let the tractor turn. In a flash, a motorcycle overtook all vehicles and, in a moment, collided with the tractor. The motorcycle was travelling at high speed.
17. In cross-examination, he stated that he saw the motor vehicle after it passed him at roughly 10 metres, and that the junction was the point of collision. The vehicles in front were the oncoming traffic.
18. In re-examination, he stated that there is a likelihood that the motorcycle could have rammed into the oncoming traffic. The accident happened in his full view.
19. The trial court, in its judgment of 23rd February 2023, by Hon D.O. Mbeja, stated as follows on liability:
“…evidence so far on record suggests that the terminal tractor driver was to blame for causing the accident. He was recklessly negligent in the manner he drove the tractor, leading to the causation of the accident. This court is satisfied that the plaintiff has established a prima facie case against the defendant on a balance of probabilities and consequently judgment is entered in favour of the plaintiff against the defendant at 100% on liability, all circumstances of this case considered.”
20. On quantum, the trial magistrate stated:
“I find no merit in the claim for loss of earning capacity for lack of sufficient evidence, and an award under this head is declined, all circumstances considered. Given the circumstances obtaining in the instant case, the injuries suffered by the plaintiff, the evidence so far adduced together with the submissions filed coupled with the authorities cited, judgment is entered in favour of the plaintiff against the defendant for Kes 1,000,000 general damages for pain and suffering, plus a sum of Kshs 4550 made up of special damages as pleaded and proved all circumstances of this case considered. The above award shall carry costs plus interest at court rates from the date of filing suit.”
21. Dissatisfied with the said decision, the appellant appealed to this court seeking to have the decision of the subordinate court and/or the judgment and orders issued on 23rd February,2023, be set aside and the court herein be pleased to reassess liability and the general damages payable to the respondent, if any. The appeal is based on the following grounds:
a) The learned trial magistrate erred in law in fact in failing to consider the evidence which was tendered by the defence on liability during the hearing of the suit and the submissions filed, hence erroneously holding the defendant/appellant 100% liable;
b) The learned magistrate erred in law and in fact in disregarding the evidence adduced by the appellant that the accident was not caused by the appellant and consequently misdirected himself in determining that the appellant was to blame for the accident, which fact was against the weight of the evidence on record;
c) That the learned trial magistrate erred in law and in fact in failing to consider the appellant’s statement of defence against the weight of the evidence tendered by the plaintiff;
d) The learned magistrate erred in law and in fact in finding that the respondent had proved his case on a balance of probabilities in view of the evidence on record;
e) That the learned trial magistrate erred in law and in fact in awarding Kes 1,042,550 (Kenya Shillings One Million Forty Two Thousand Five Hundred and Fifty Thousand) only to the respondent, which award, when viewed against comparable claims, is manifestly excessive and inordinately high as to amount to a miscarriage of justice;
f) The learned magistrate erred in law and in fact by failing to apply the relevant and pertinent judicial principles, precedents and trends regarding the award of quantum;
g) The learned trial magistrate erred grossly and misdirected himself by treating the evidence and submissions before him on quantum superficially and consequently arrived at a wrong decision without any basis in law or fact;
h) The learned trial magistrate erred in law and in fact in failing to exercise his discretion judiciously and proceeded to arbitrarily award damages that were inordinately high in the circumstances of the case; and
i) The learned trial court treated the submissions of the appellants lightly and disregarded the appellant’s evidence record.
22. The appeal was canvassed by way of written submissions. Subsequently, the appellant, through its advocates, Cootow & Associates, filed its written submissions dated 28th July 2025.
23. On grounds 1, 2, 3 and 4, counsel for the appellant relied on section 107(1) of the Evidence Act. It was submitted that PW1, the police officer attached to Kilindini Police Station, admitted that he was not the investigating officer and that investigations were yet to be concluded; therefore, there was no evidence to assist the trial court in determining who caused the accident.
24. Further, PW3, the rider of motorcycle registration number KMEY 738B, confirmed that there was a bend and/or junction on the road which he was using. He could not tell the designated speed limit of the said road either. Further, he confirmed that the accident occurred while he was trying to overtake the appellant’s motor vehicle.
25. Counsel also submitted that DW1 testified the accident happened when the respondent suddenly tried to overtake a group of vehicles, including the one he was driving. He stated that he was not driving at a high speed because the vehicle was carrying containers, which made it heavy and unable to be driven quickly. The vehicles behind him had slowed down to give him space to turn right, and the oncoming vehicles had also stopped to allow him to make the right turn as he indicated. However, the respondent did not stop and instead tried to overtake the convoy, resulting in a collision with his vehicle. The respondent attempted to overtake very closely, making it impossible for him to avoid the crash.
26. Counsel further submitted that liability cannot exist without fault. The respondent failed to demonstrate any fault on the part of the appellant that could have caused the accident. The respondent did not meet the burden of proof, and therefore, the suit should have been dismissed with costs.
27. On grounds 5, 6, 7, and 9, counsel submitted that if the court finds the appellant liable, the court, when determining quantum, should be guided by the fact that PW2, Dr Darius Kiema, testified that the respondent sustained the following injuries: head injury with brain oedema, loss of consciousness, deep cut/lacerations on the occipital area, bleeding from nose and ears, and left periorbital ecchymosis, post-concussion syndrome; bruises, abrasions, and lacerations on the right shoulder, right hand, and both lower limbs. For these injuries, the court ought to have awarded Kes 200,000 in general damages for pain and suffering, taking inflation and slight variations in the injuries into account.
28. Counsel submitted that it is trite law that special damages must not only be pleaded, but they must also be strictly proved, which the respondent did and may be awarded the same.
29. The respondent, on the other hand, through his advocates S.N. Ngare & Company Advocates, filed written submissions dated 14th July 2025.
30. On liability counsel submitted that PW3 testified that on the material day, he was riding a motorcycle registration number KMEY738C when he was involved in an accident with the motor vehicle owned by the appellant. He also testified that the accident occurred on the 7th August 2020 involving motorcycle registration number KMEYN 738C and motor vehicle registration TTT177/HTR270, at 11.30 am and was recorded in O. B NO.14/07/08/2020. He testified that a police abstract was issued regarding the accident, and the same was produced as plaintiff exhibit 8, which clearly shows that the accident occurred. Further, upon investigation by the investigating officer, P.C Hassan, who has been transferred from Port Reitz Police Station, charges were preferred against DW1, the driver of motor vehicle registration number TT177/HTR270.
31. Counsel submitted that both DW1 and DW2 confirmed that an accident occurred on the material date and time pleaded in the plaint. Counsel urged the court to find that the accident did happen between the motorcycle and the motor vehicle as pleaded and proved.
32. Regarding who was to blame for the accident, counsel submitted that the accident was entirely caused by the appellant and/or its authorised driver. He referred the court to the particulars of negligence in the plaint, the respondent’s response in paragraph 7 of the defence, PW1’s evidence, PW3’s evidence, and that of DW1 and DW2. Counsel argued that DW1's testimony is not credible due to contradictions and urged the court to disregard it. He further stated that the respondent and DW1 are responsible for the accident because, according to PW3’s testimony, the accident resulted from careless driving by DW1; the driver of the vehicle, who had a lethal machine, owed a greater duty of care than the respondent. The appellant failed to meet its evidential burden by not proving negligence on the part of the respondent. DW1 appears to shift blame onto the respondent, based on the fact that the appellant’s driver was not convicted of any offence. Counsel urged the court to find that the appellant was 100% liable.
33. On quantum counsel submitted that the trial court did not consider any irrelevant factor in arriving at the award for pain, suffering and loss of amenities. On the award for diminished earning capacity, counsel submitted that there was uncontroverted evidence to justify the same. The trial court's decision was based on the injuries pleaded and proved.
34. Counsel further submitted that the appellant has not shown any reason for this court to interfere with the trial court’s award. Counsel urged the court to uphold the award of the trial court on general damages.
35. In conclusion, counsel urged the court to dismiss the appeal with costs and uphold the decision of the trial court.
36. This being a first appeal, this court is under a duty to re-evaluate the evidence and draw its own conclusions. It must, however, keep in mind that the subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand.
37 The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968] EA 123, where the court held as follows:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
38 Similarly, in the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased) [2016] KEHC 4186 (KLR), the court stated that:
“8. The appeal to this court is a first appeal. It is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348.
9. It was further held in the case of Hahn v Singh (1985)KLR 716 that the appellate court will hardly interfere with the conclusions made by a trial court after weighing the credibility of the witnesses in cases where there is a conflict of primary facts between witnesses and where the credibility of the witness is crucial.”
39 The parties herein have both blamed each other for the accident, with the appellant accusing the respondent of overtaking carelessly and from the wrong side of the road, which the respondent has denied. The respondent called a police officer, PC Sylvester Wabwire, who, in his evidence, blamed the appellant’s driver for causing the accident.
40 I have considered the evidence on record. It is my view that the evidence of the respondent was cogent and did in fact discharge the burden of proof and to establish a prima facie case. Accordingly, I will not interfere with the trial court's findings on liability.
41 On quantum, the appellant has argued that the award of Kes1,000,000 was way too high. In the case of Elizabeth Wamboi Gichoni v Virginia Achieng Achola [2019] KEHC 806 (KLR) stated that:
“This being a first appellate Court, the Law is now settled that an appellate Court will only disturb an award of damages where it is satisfied that the trial court proceeded on wrong premises in its assessment or that the award is too low or too high as to amount to an erroneous estimate.”
42 Further, the court in the case of China Henan International Cooperation Group Co. Limited & another v Muriithi aka Peter Gicharu Mureithi [2024] KEHC 1590 (KLR) stated:
“As a general principle, assessment is a matter of discretion that ought to be exercised judiciously. An Appellate Court would not be quick to interfere with such discretion unless it is absolutely necessary in the circumstances. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated: “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.”
43 There is no dispute that the respondent suffered injuries. This Court has already established that the appellant was wholly to blame for the accident. It therefore follows that he deserves compensation for the same. I have looked at comparable cases. Having done so, I am of the view that the award was too high. This Court is therefore justified in disturbing the same. In the circumstances, I set aside the award of Kes 1,000,000 and, in lieu thereof, substitute it with an award of Kes 500,000 for pain and suffering.
44 I am guided by the case of Philip Musyoka Mutua v Leonard Kyalo Mutisya [2018] KEHC 1350 (KLR), where the court stated:
“In view of the above principle, it is this court’s opinion that since money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what, in the circumstances, is fair compensation on the principle that comparable injuries should be compensated by comparable awards.”
45 In conclusion, I hereby uphold the judgment of the trial court on liability. I set aside the award of Kes 1,000,000 as general damages for pain and suffering and, in lieu thereof, award the sum of Kes 500,000. I won't disturb the findings on special damages as the same wasn’t disputed.
46 The appellant has partly succeeded. Under the circumstances, the respondent shall have half the costs in the appeal and the costs in the court below.
47 It is so ordered.
Dated and signed in Mombasa this 13th day of February 2026. Delivered virtually through Microsoft TEAMS.
2. The appellant opposed the suit. The Court below heard the matter on its merits. I will summarise the witnesses' evidence below.
3. During the trial, the respondent, then the plaintiff, called three witnesses.
4. PW1 was PC Sylvester Wabwire. PC Wabwire, who is attached to the Port Police Station and performs traffic duties, testified that an accident was reported vide OB14/07/08/2020 booked at 1210 hours. It was his testimony that on 7th August 2020 at 11:30 hrs, along Kilindini Road, a serious road traffic accident occurred involving a terminal tractor, registration no. TTT177/HTR270, driven by one Mohamed Said, an employee of the appellant, and a motorcycle registration no. KMEY 738B ridden by the respondent. The tractor driver, while overtaking a motorcycle, charged and struck the motorcycle rider, who was heading towards gate 10. Due to the impact, the motorcycle was extensively damaged, and the rider sustained a serious head injury and was rushed to Coast General Hospital, where he was admitted in serious condition. The tractor driver was overtaking carelessly. PC Wabwire testified that the driver of the terminal tractor was to blame for the accident.
5. In cross-examination, it was his evidence that he did not witness the accident, nor was he the investigating officer, and that the matter was pending investigation. He stated that there was no proof that the investigations had reached a conclusion; however, he had produced the OB and was also guided by the information in the abstract. He reiterated that the terminal tractor driver was to blame for the accident.
6. In re-examination, he told the court that the handwriting in the OB was legible and that the driver of the tractor was to blame for the accident.
7. The second witness for the respondent was Dr Daniel Wambua Kiema, who told the court that he was the author of the report dated 14th September 2020, produced as exhibit 9 and receipt as exhibit 10(a) and (b) respectively for Kes 2000 and Kes 5000.
8. When cross-examined, he stated that the plaintiff had suffered a head injury and also had post-traumatic stress disorder. He said that the headaches would be intermittent and that painkillers along with outpatient follow-up would manage them. He explained that he made a recommendation based on best practice and that the situation could improve or worsen.
9. In re-examination, he reiterated his findings on incapacity and stated that painkillers would manage the headache.
10. The last witness for the respondent was Joseph Valasa Mulwa. Mr Mulwa adopted his statement, along with the list and bundle of documents dated 5th December 2020. He stated that the accident occurred at 11:30 hours. At the time, it was raining. The accident happened on a straight stretch of road. He was injured, lost consciousness, and regained it after 8 hours. He testified that he has not fully healed, as he experiences pain most of the time and feels dizzy when it is hot. He prayed that he be granted the reliefs sought in the plaint.
11. In cross-examination, he told the court that at the time of the accident, there were no other vehicles and that there was a bend which was a bit far away. The motorcycle and the tractor collided, damaging the tractor's tyre. He said he was riding slowly and could not remember the speed limit. He also mentioned that he returned to work on 10th October 2020 and that the soft-tissue injuries have healed.
12. When re-examined, he testified that he has been given light duties due to injuries. The accident occurred on a straight road, as the corner was far ahead, and the tractor driver caused it.
13. The appellant called two witnesses. The first witness for the appellant, whom I shall refer to as DW1, Mohamed Fungo, is a driver with the appellant. He adopted his statement dated 24th August 2021 as his evidence-in-chief and blamed the plaintiff for the accident, stating that he overtook on the wrong side of the road.
14. In cross-examination, he stated that there were vehicles behind him that slowed down, and vehicles ahead of him as well, while the motorcycle emerged on the right. His indicator was on as he was turning right at the junction.
15. In re-examination, he stated that the motorcycle was on the left and intended to overtake on the right side. He also mentioned that there were four vehicles behind him.
16. DW2 David Ombee also adopted his statement as evidence in chief. He blamed the motorcycle driver because several other vehicles were behind the terminal tractor. As they approached a junction, he slowed, and all other vehicles slowed to let the tractor turn. In a flash, a motorcycle overtook all vehicles and, in a moment, collided with the tractor. The motorcycle was travelling at high speed.
17. In cross-examination, he stated that he saw the motor vehicle after it passed him at roughly 10 metres, and that the junction was the point of collision. The vehicles in front were the oncoming traffic.
18. In re-examination, he stated that there is a likelihood that the motorcycle could have rammed into the oncoming traffic. The accident happened in his full view.
19. The trial court, in its judgment of 23rd February 2023, by Hon D.O. Mbeja, stated as follows on liability:
“…evidence so far on record suggests that the terminal tractor driver was to blame for causing the accident. He was recklessly negligent in the manner he drove the tractor, leading to the causation of the accident. This court is satisfied that the plaintiff has established a prima facie case against the defendant on a balance of probabilities and consequently judgment is entered in favour of the plaintiff against the defendant at 100% on liability, all circumstances of this case considered.”
20. On quantum, the trial magistrate stated:
“I find no merit in the claim for loss of earning capacity for lack of sufficient evidence, and an award under this head is declined, all circumstances considered. Given the circumstances obtaining in the instant case, the injuries suffered by the plaintiff, the evidence so far adduced together with the submissions filed coupled with the authorities cited, judgment is entered in favour of the plaintiff against the defendant for Kes 1,000,000 general damages for pain and suffering, plus a sum of Kshs 4550 made up of special damages as pleaded and proved all circumstances of this case considered. The above award shall carry costs plus interest at court rates from the date of filing suit.”
21. Dissatisfied with the said decision, the appellant appealed to this court seeking to have the decision of the subordinate court and/or the judgment and orders issued on 23rd February,2023, be set aside and the court herein be pleased to reassess liability and the general damages payable to the respondent, if any. The appeal is based on the following grounds:
a) The learned trial magistrate erred in law in fact in failing to consider the evidence which was tendered by the defence on liability during the hearing of the suit and the submissions filed, hence erroneously holding the defendant/appellant 100% liable;
b) The learned magistrate erred in law and in fact in disregarding the evidence adduced by the appellant that the accident was not caused by the appellant and consequently misdirected himself in determining that the appellant was to blame for the accident, which fact was against the weight of the evidence on record;
c) That the learned trial magistrate erred in law and in fact in failing to consider the appellant’s statement of defence against the weight of the evidence tendered by the plaintiff;
d) The learned magistrate erred in law and in fact in finding that the respondent had proved his case on a balance of probabilities in view of the evidence on record;
e) That the learned trial magistrate erred in law and in fact in awarding Kes 1,042,550 (Kenya Shillings One Million Forty Two Thousand Five Hundred and Fifty Thousand) only to the respondent, which award, when viewed against comparable claims, is manifestly excessive and inordinately high as to amount to a miscarriage of justice;
f) The learned magistrate erred in law and in fact by failing to apply the relevant and pertinent judicial principles, precedents and trends regarding the award of quantum;
g) The learned trial magistrate erred grossly and misdirected himself by treating the evidence and submissions before him on quantum superficially and consequently arrived at a wrong decision without any basis in law or fact;
h) The learned trial magistrate erred in law and in fact in failing to exercise his discretion judiciously and proceeded to arbitrarily award damages that were inordinately high in the circumstances of the case; and
i) The learned trial court treated the submissions of the appellants lightly and disregarded the appellant’s evidence record.
22. The appeal was canvassed by way of written submissions. Subsequently, the appellant, through its advocates, Cootow & Associates, filed its written submissions dated 28th July 2025.
23. On grounds 1, 2, 3 and 4, counsel for the appellant relied on section 107(1) of the Evidence Act. It was submitted that PW1, the police officer attached to Kilindini Police Station, admitted that he was not the investigating officer and that investigations were yet to be concluded; therefore, there was no evidence to assist the trial court in determining who caused the accident.
24. Further, PW3, the rider of motorcycle registration number KMEY 738B, confirmed that there was a bend and/or junction on the road which he was using. He could not tell the designated speed limit of the said road either. Further, he confirmed that the accident occurred while he was trying to overtake the appellant’s motor vehicle.
25. Counsel also submitted that DW1 testified the accident happened when the respondent suddenly tried to overtake a group of vehicles, including the one he was driving. He stated that he was not driving at a high speed because the vehicle was carrying containers, which made it heavy and unable to be driven quickly. The vehicles behind him had slowed down to give him space to turn right, and the oncoming vehicles had also stopped to allow him to make the right turn as he indicated. However, the respondent did not stop and instead tried to overtake the convoy, resulting in a collision with his vehicle. The respondent attempted to overtake very closely, making it impossible for him to avoid the crash.
26. Counsel further submitted that liability cannot exist without fault. The respondent failed to demonstrate any fault on the part of the appellant that could have caused the accident. The respondent did not meet the burden of proof, and therefore, the suit should have been dismissed with costs.
27. On grounds 5, 6, 7, and 9, counsel submitted that if the court finds the appellant liable, the court, when determining quantum, should be guided by the fact that PW2, Dr Darius Kiema, testified that the respondent sustained the following injuries: head injury with brain oedema, loss of consciousness, deep cut/lacerations on the occipital area, bleeding from nose and ears, and left periorbital ecchymosis, post-concussion syndrome; bruises, abrasions, and lacerations on the right shoulder, right hand, and both lower limbs. For these injuries, the court ought to have awarded Kes 200,000 in general damages for pain and suffering, taking inflation and slight variations in the injuries into account.
28. Counsel submitted that it is trite law that special damages must not only be pleaded, but they must also be strictly proved, which the respondent did and may be awarded the same.
29. The respondent, on the other hand, through his advocates S.N. Ngare & Company Advocates, filed written submissions dated 14th July 2025.
30. On liability counsel submitted that PW3 testified that on the material day, he was riding a motorcycle registration number KMEY738C when he was involved in an accident with the motor vehicle owned by the appellant. He also testified that the accident occurred on the 7th August 2020 involving motorcycle registration number KMEYN 738C and motor vehicle registration TTT177/HTR270, at 11.30 am and was recorded in O. B NO.14/07/08/2020. He testified that a police abstract was issued regarding the accident, and the same was produced as plaintiff exhibit 8, which clearly shows that the accident occurred. Further, upon investigation by the investigating officer, P.C Hassan, who has been transferred from Port Reitz Police Station, charges were preferred against DW1, the driver of motor vehicle registration number TT177/HTR270.
31. Counsel submitted that both DW1 and DW2 confirmed that an accident occurred on the material date and time pleaded in the plaint. Counsel urged the court to find that the accident did happen between the motorcycle and the motor vehicle as pleaded and proved.
32. Regarding who was to blame for the accident, counsel submitted that the accident was entirely caused by the appellant and/or its authorised driver. He referred the court to the particulars of negligence in the plaint, the respondent’s response in paragraph 7 of the defence, PW1’s evidence, PW3’s evidence, and that of DW1 and DW2. Counsel argued that DW1's testimony is not credible due to contradictions and urged the court to disregard it. He further stated that the respondent and DW1 are responsible for the accident because, according to PW3’s testimony, the accident resulted from careless driving by DW1; the driver of the vehicle, who had a lethal machine, owed a greater duty of care than the respondent. The appellant failed to meet its evidential burden by not proving negligence on the part of the respondent. DW1 appears to shift blame onto the respondent, based on the fact that the appellant’s driver was not convicted of any offence. Counsel urged the court to find that the appellant was 100% liable.
33. On quantum counsel submitted that the trial court did not consider any irrelevant factor in arriving at the award for pain, suffering and loss of amenities. On the award for diminished earning capacity, counsel submitted that there was uncontroverted evidence to justify the same. The trial court's decision was based on the injuries pleaded and proved.
34. Counsel further submitted that the appellant has not shown any reason for this court to interfere with the trial court’s award. Counsel urged the court to uphold the award of the trial court on general damages.
35. In conclusion, counsel urged the court to dismiss the appeal with costs and uphold the decision of the trial court.
36. This being a first appeal, this court is under a duty to re-evaluate the evidence and draw its own conclusions. It must, however, keep in mind that the subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand.
37 The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968] EA 123, where the court held as follows:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
38 Similarly, in the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased) [2016] KEHC 4186 (KLR), the court stated that:
“8. The appeal to this court is a first appeal. It is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348.
9. It was further held in the case of Hahn v Singh (1985)KLR 716 that the appellate court will hardly interfere with the conclusions made by a trial court after weighing the credibility of the witnesses in cases where there is a conflict of primary facts between witnesses and where the credibility of the witness is crucial.”
39 The parties herein have both blamed each other for the accident, with the appellant accusing the respondent of overtaking carelessly and from the wrong side of the road, which the respondent has denied. The respondent called a police officer, PC Sylvester Wabwire, who, in his evidence, blamed the appellant’s driver for causing the accident.
40 I have considered the evidence on record. It is my view that the evidence of the respondent was cogent and did in fact discharge the burden of proof and to establish a prima facie case. Accordingly, I will not interfere with the trial court's findings on liability.
41 On quantum, the appellant has argued that the award of Kes1,000,000 was way too high. In the case of Elizabeth Wamboi Gichoni v Virginia Achieng Achola [2019] KEHC 806 (KLR) stated that:
“This being a first appellate Court, the Law is now settled that an appellate Court will only disturb an award of damages where it is satisfied that the trial court proceeded on wrong premises in its assessment or that the award is too low or too high as to amount to an erroneous estimate.”
42 Further, the court in the case of China Henan International Cooperation Group Co. Limited & another v Muriithi aka Peter Gicharu Mureithi [2024] KEHC 1590 (KLR) stated:
“As a general principle, assessment is a matter of discretion that ought to be exercised judiciously. An Appellate Court would not be quick to interfere with such discretion unless it is absolutely necessary in the circumstances. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated: “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.”
43 There is no dispute that the respondent suffered injuries. This Court has already established that the appellant was wholly to blame for the accident. It therefore follows that he deserves compensation for the same. I have looked at comparable cases. Having done so, I am of the view that the award was too high. This Court is therefore justified in disturbing the same. In the circumstances, I set aside the award of Kes 1,000,000 and, in lieu thereof, substitute it with an award of Kes 500,000 for pain and suffering.
44 I am guided by the case of Philip Musyoka Mutua v Leonard Kyalo Mutisya [2018] KEHC 1350 (KLR), where the court stated:
“In view of the above principle, it is this court’s opinion that since money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what, in the circumstances, is fair compensation on the principle that comparable injuries should be compensated by comparable awards.”
45 In conclusion, I hereby uphold the judgment of the trial court on liability. I set aside the award of Kes 1,000,000 as general damages for pain and suffering and, in lieu thereof, award the sum of Kes 500,000. I won't disturb the findings on special damages as the same wasn’t disputed.
46 The appellant has partly succeeded. Under the circumstances, the respondent shall have half the costs in the appeal and the costs in the court below.
47 It is so ordered.
Dated and signed in Mombasa this 13th day of February 2026. Delivered virtually through Microsoft TEAMS.