REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO.63 OF 2023
KH KENYA LIMITED……………………………………………APPELLANT
VERSUS
MOSES FWAMBA MASINDE…………………………..1ST RESPONDENT
CHARLES KISANG………………………………….…..2ND RESPONDENT
ROBERT KIPTRICH YATOR…………………………..3RD RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Webuye SPMCC No. 258 of 2017 delivered by Hon. S.Y Kulecho (PM) on 9th July 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellants seek to overturn the decision in the Principal Magistrate’s Court in Webuye SPMCC No. 258 of 2017 delivered by Hon. S.Y Kulecho (PM) on 9th July 2023, on liability and quantum of damages. In the said case, the 1st Respondent had sued the Appellant, 2nd and 3rd Respondents seeking recovery of general and special damages arising from a road accident that occurred on 19th June 2016, in which the 1st Respondent sustained serious injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. Vide a Plaint dated 14th December 2017, the 1st Respondent averred that on or about 19th June 20016, he was a lawful passenger in the 2nd and 3rd Respondent’s Motor Vehicle Registration Number KCB 369 E along Eldoret-Webuye road when their Motor Vehicle Registration Number KCB 369 E and the Appellant’s Motor Vehicle Registration Number KBB 441B/ZC 8092 when the Appellant’s, 2nd and 3rd Respondents agent driver and/or servant drove and controlled Motor Vehicle Registration Numbers KCB 369 E and KBB 441B/ZC 8092 in such a reckless, negligent and careless manner resulting into a collision between the said Motor Vehicles and the causing an accident, resulting in the 1st Respondent sustaining serious personal injuries.
5. The Appellant in its Statement of Defence dated 2nd September 2018, denied ownership of the Motor Vehicle Registration Number KBB 441B/ZC 8092; denied the occurrence of the accident, liability and alternatively attributed the accident to the 1st Respondent’s negligence wholly or substantially.
D. EVIDENCE
6. PW1, Moses Masinde Fwamba, adopted his witness statement recorded on 14th December 2018 as his evidence in chief. According to him, he sustained injuries on his neck and his right hand, and that his right thumb was fractured. He blamed the driver of Motor Vehicle Registration Number KCB 369 E for the accident as it was been driven at a speed limit of 50 Km/Hr causing the driver of the Motor Vehicle Registration Number KBB 441B/ZC 8092 to hit
Motor Vehicle Registration Number KCB 369 E from behind as he was driving at high speed. He blamed the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 for hitting Motor Vehicle KCB 369 E from behind and that driver of the Motor Vehicle KCB 369 E should have tried to avert the accident by even veering off the road despite there been no allowance to veer off the road, but there were ditches. According to him, the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 was charged with careless driving and that he blamed the Appellant, 2nd and 3rd Respondents for the accident.
7. PW2, No. 104403 P.C Teresa Wachika, testified that she was attached to Lumakanda Police Station, but the Police Abstract with emanated from Turbo Police Station. According to her, the accident occurred at Mabanga area along Webuye-Eldoret road on 19th June 2016, and the same involved Motor Vehicle Registration Number KBB 441B/ZC 8092 and Motor Vehicle Registration Number KCB 369 E. She told the Court that the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092, but the driver absconded after issued with police bail thus did not take plea before the Court. She told the Court that she was not the investigating officer in this matter as the investigating officer was transferred to Baringo and she was guided by the police file, but did not avail the same before the trial Court.
8. PW3, Dr. Richard Njoroge Kuria, testified that he was before the Court to avail the medical report of the 1st Respondent dated 29th June 2016. According to him, on examination of the 1st Respondent he noted he had a fracture of the right thigh and fracture of the right thumb. His prognosis was that the 1st Respondent sustained soft tissue injuries as well as fracture of the distal phalanx of the right thumb with no permanent incapacity.
9. DW1, Nicholas Ndiwa Boiyo, adopted his recorded statement dated 6th February 2022 as defence evidence in chief. He testified that he was involved in a traffic accident on 6th September 2016, as he was travelling from Webuye heading for Eldoret. According to him, the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 hit his Motor Vehicle Registration Number KCB 369 E from behind as they were both head on the same direction. He told the Court that the traffic officers blamed the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 for the accident.
10. DW2, No. 95778 P.C Michael Kibet, testified that he was based at Lumakanda Police Station and he was before the Court to avail the investigation file in respect to the accident that occurred on 19th June 2016. According to him, the accident involved Motor Vehicle Registration Number KBB 441B/ZC 8092 and Motor Vehicle Registration Number KCB 369 E. He told the Court both Motor Vehicles were heading the same direction and on reaching Mabanga bridge, Motor Vehicle Registration Number KCB 369 E which was been driven at a moderate speed was hit from behind by Motor Vehicle Registration Number KBB 441B/ZC 8092 leading to it losing control and veering off the road. He blamed the driver of the Motor Vehicle Registration Number KBB 441B/ZC 8092 for the accident as he failed to maintain the 70 m distance between himself and the Motor Vehicle Registration Number KCB 369 E. He told the Court that the police recommended that the said driver be charged with traffic offence of carless driving. He availed in Court the OB extract, investigations findings and sketch maps as DEXH 2, DEXH 3 and DEXH 4 respectively. He told the Court that he was not the investigating officer and that driver of Motor Vehicle Registration Number KCB 369 E was not to blame for the accident.
E. THE APPEAL
11. The Appellant seeks to overturn the judgment on both liability and quantum as per the preferred ten (10) grounds of appeal.
12. The Appellant prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate and independent holding on liability and quantum. Subsequently, that the costs of the appeal and at the trial Court be awarded to the Appellant.
13. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
14. In view of the above, I have perused and considered evidence adduced before the trial Court together with the submissions filed herein and wish to consider whether the 1st Respondent who was the Plaintiff in the trial Court proved his claim against the Appellant on a balance of probabilities. The legal burden of proof in a civil case was discussed in the case of Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR where the Court stated as follows: -
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
15. In view of the above, the burden of proof at all times lay with the Plaintiff to prove the case and not the Defendant. In the instant case, ownership of Motor Vehicle Registration Number KBB 441B/ZC 8092 was in issue; whether the Appellant owned the vehicle. The 1st Respondent had the burden of proving that the Appellant owned the said vehicle at the time of the accident. Record show that the 1st Respondent relied on the contents of the police abstract which he produced as PEXH 2 to prove ownership of the suit motor vehicle. Further, the copy of search at the Registrar Motor Vehicles produced as PEXH 1 (a) confirmed the 3rd Respondent as the owner of Motor Vehicle Registration Number KCB 369 E.
16. Various Courts have found that a Police Abstract when produced as evidence can be sufficient proof of ownership unless it is successfully challenged. In the case of Joel Muga Opija v East African Sea Foods Ltd [2013] eKLR the Court in affirming this position held:
“In our view an exhibit is evidence and in this case the appellant’s evidence that the police recorded the respondent as the owner of the vehicle and Ouma’s evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter that evidence. We think, with respect that the learned Judge in failing to consider in depth the legal position of what is required to prove ownership erred on point of law on that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the Registrar of Motor Vehicles showing who the registered owner is, but when the Abstract is not challenged and is produced in court without any objection, its contents cannot be later denied.”
17. In the above case, the Court found that the contents of a Police Abstract is sufficient to establish ownership of a Motor Vehicle Registration Number KBB 441B/ZC 8092. It is worth noting that in civil cases, the standard of proof is that of balance of probabilities unlike criminal cases where proof is beyond reasonable doubt. The court is required to weigh evidence adduced by both parties and decide on a balance of probabilities and not beyond reasonable doubt, whether the vehicle belonged to the respondent or not.
18. From the foregoing, it is clear that proof of ownership is not only by registration by Registrar of Motor Vehicles but it can also be proved by of other documents which include police abstract unless there is sufficient challenge and each case has to be considered on its own peculiar facts.
19. On the issue of liability, the Respondent (PW1) testified that he blamed the Appellant, 2nd and 3rd Respondents for the accident that occurred on 19th June 2016. It is clear from the evidence on record both the police officers who rendered their testimonies (PW2 and DW2 respectively) blamed the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092. PW2 availed before the trial Court the police abstract form as PEXH 2 which blamed the driver for the accident and recommended his prosecution. On the other hand, DW2 availed before the trial Court the OB extract, investigations findings and sketch maps as DEXH 2, DEXH 3 and DEXH 4 respectively and testified that the driver of the Motor Vehicle Registration Number KBB 441B/ZC 8092 was to blame for the accident and that he failed to maintain a distance of 70 m between his Motor Vehicle and that of 3rd Respondent, Motor Vehicle Registration Number KCB 369 E.
20. In the case of Z O S & C A O (Suing as the Legal Representatives in the Estate of S A O (Deceased) v Amollo Stephen [2019] eKLR the Court expressed itself in respect to police abstract as follows:
“The Police Abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of an accident but proof of the fact that following an accident, the occurrence thereof was reported to the police who took cognizance of that accident. It is therefore the police, having received information or a report of occurrence of an accident, would investigate and establish circumstances under which such an accident occurred. The police abstract produced as PEx. 3 dated 21/8/2018 only provides particulars of the reported accident; the owner of the subject motor vehicle involved, the injured person being the deceased, the insurance company and particulars thereof…………That being the case, it was incumbent upon the appellant, at the time of hearing, to either call an eye witness who saw the accident take place to prove any of the listed particulars of negligence attributed to the Respondent, or to call the police from Bondo Police Station, who investigated the accident to shed light on the results of the investigations; and as to who was to blame for the subject accident wherein the deceased lost his life.”
21. The 1st Respondent said that he was a lawful passenger on Motor Vehicle Registration Number KCB 369 E when the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 hit the said Motor Vehicle from behind. DW2 who availed in Court the sketch map and investigations findings, testified that at arriving at Mabanga bridge, Motor Vehicle Registration Number KCB 369 E, which was been driven at moderate speed was hit from behind by the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092. It was his testimony that upon impact the driver of the driver of Motor Vehicle Registration Number KCB 369 E lost control and veered off the road. DW2 blamed the driver of the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092, which is owned by the Appellant herein for the accident as the driver failed to maintain the requisite 70 m distance between his Motor Vehicle and that ahead of him. Further, PW2 also blamed the Appellant’s driver for the accident and recommended his prosecution after conducting the requisite investigations. Her testimony was not challenged by the Appellant. In my view, this was sufficient in the absence of evidence to the contrary to hold the Appellant 100% liable for the accident. I hereby concur with the holding of the trial Court on liability and uphold the same.
22. With regards to quantum, it is settled law that an appellate Court will not interfere with an award of general damages by a trial Court unless:- (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. (See Dumez (Nig) Ltd v Ogboli {1972} 3 S.C. Page 196.'' Per BADA, J.C.A (P. 28, paras. C-G).
23. Additionally, in Kivati v Coastal Bottlers Ltd42 the Court of Appeal (Civil Appeal No. 69 of 1984) stated:-
“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate."
24. Award of damages is an exercise of discretion of the trial Court, but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.
25. Based on the medical report dated 30th August 2016, by Dr. Okubasu, it is clear that the 1st Respondent herein sustained:
a. Blunt injury to the neck
b. Blunt injury to the right hand
c. Fracture base to the distal phlange on the right hand
26. At the point of his examination, the 1st Respondent complained of pain in his right hand. Dr. Okubasu opined that the 1st Respondent suffered soft tissue injuries.
27. As regards general damages, the lower Court awarded Kshs.180,000/= and relied on the authorities as cited by the Appellant. (Simba Posho Mills Ltd vs Onguti (2005) eKLR).
28. Considering the nature of the injuries and the case cited above herein, I find that an award of Kshs. 180,000.00/= is not on the higher side, considering the nature of the injuries and the current trend of awards. I cannot say that it is so inordinately high as to constitute an entirely erroneous estimate. I affirm the award of the trial Court on general damages.
29. On the issue of costs, it is trite law that the issue of costs is a discretionary one that is awarded to a successful party. Furthermore, this discretion must be exercised judiciously and a party cannot be denied costs unless it can be shown that they acted unreasonably.
30. Section 27(1) of the Civil Procedure Act provides:-
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purpose aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers.
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge for good reasons otherwise order.
31. Section 27 of the Civil Procedure Act is clear that the discretion to award costs lies with the Court in any suit. This discretion must be exercised judiciously.
32. In the case of Supermarine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No 85 of 2006 the Court of Appeal stated:-
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge to decide, and the Court of Appeal will not interfere with his discretion in that instance.”
33. The matter in the Court below arose from a road traffic accident involving the 1st Respondent who was a passenger aboard Motor Vehicle KCB 369 E along Webuye-Eldoret. The matter proceeded for hearing and the trial Court rendered its judgment on 9th June 2023. The trial Court found the Appellant 100% liable. The 1st Respondent was awarded general damages in the sum of Kshs 180,000/= and special damages at Kshs. 6, 575/=. The trial Court further awarded interest at Court rates on both the general and special damages awards from the date of judgment until payment in full. The record shows that the magistrate noted that the suit against the 2nd and 3rd Respondents was dismissed with costs payable by the Appellant. The trial court erred in condemning the appellant who was a co- defendant to pay costs of the 2nd and 3rd respondents.
G. CONCLUSION
34. This appeal partially succeeds and the order condemning the appellant to pay costs of the 2nd and 3rd respondents is set aside and the 1st respondent is ordered to pay costs of the 2nd and 3rd Respondents of the lower court.
35. The appellant shall bear the costs of this appeal.
36. It is hereby so ordered.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A FOR APPELLANT
N/A FOR 1ST RESPONDENT
N/A FOR 2ND & 3RD RESPONDENTS
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO.63 OF 2023
KH KENYA LIMITED……………………………………………APPELLANT
VERSUS
MOSES FWAMBA MASINDE…………………………..1ST RESPONDENT
CHARLES KISANG………………………………….…..2ND RESPONDENT
ROBERT KIPTRICH YATOR…………………………..3RD RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Webuye SPMCC No. 258 of 2017 delivered by Hon. S.Y Kulecho (PM) on 9th July 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellants seek to overturn the decision in the Principal Magistrate’s Court in Webuye SPMCC No. 258 of 2017 delivered by Hon. S.Y Kulecho (PM) on 9th July 2023, on liability and quantum of damages. In the said case, the 1st Respondent had sued the Appellant, 2nd and 3rd Respondents seeking recovery of general and special damages arising from a road accident that occurred on 19th June 2016, in which the 1st Respondent sustained serious injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. Vide a Plaint dated 14th December 2017, the 1st Respondent averred that on or about 19th June 20016, he was a lawful passenger in the 2nd and 3rd Respondent’s Motor Vehicle Registration Number KCB 369 E along Eldoret-Webuye road when their Motor Vehicle Registration Number KCB 369 E and the Appellant’s Motor Vehicle Registration Number KBB 441B/ZC 8092 when the Appellant’s, 2nd and 3rd Respondents agent driver and/or servant drove and controlled Motor Vehicle Registration Numbers KCB 369 E and KBB 441B/ZC 8092 in such a reckless, negligent and careless manner resulting into a collision between the said Motor Vehicles and the causing an accident, resulting in the 1st Respondent sustaining serious personal injuries.
5. The Appellant in its Statement of Defence dated 2nd September 2018, denied ownership of the Motor Vehicle Registration Number KBB 441B/ZC 8092; denied the occurrence of the accident, liability and alternatively attributed the accident to the 1st Respondent’s negligence wholly or substantially.
D. EVIDENCE
6. PW1, Moses Masinde Fwamba, adopted his witness statement recorded on 14th December 2018 as his evidence in chief. According to him, he sustained injuries on his neck and his right hand, and that his right thumb was fractured. He blamed the driver of Motor Vehicle Registration Number KCB 369 E for the accident as it was been driven at a speed limit of 50 Km/Hr causing the driver of the Motor Vehicle Registration Number KBB 441B/ZC 8092 to hit
Motor Vehicle Registration Number KCB 369 E from behind as he was driving at high speed. He blamed the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 for hitting Motor Vehicle KCB 369 E from behind and that driver of the Motor Vehicle KCB 369 E should have tried to avert the accident by even veering off the road despite there been no allowance to veer off the road, but there were ditches. According to him, the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 was charged with careless driving and that he blamed the Appellant, 2nd and 3rd Respondents for the accident.
7. PW2, No. 104403 P.C Teresa Wachika, testified that she was attached to Lumakanda Police Station, but the Police Abstract with emanated from Turbo Police Station. According to her, the accident occurred at Mabanga area along Webuye-Eldoret road on 19th June 2016, and the same involved Motor Vehicle Registration Number KBB 441B/ZC 8092 and Motor Vehicle Registration Number KCB 369 E. She told the Court that the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092, but the driver absconded after issued with police bail thus did not take plea before the Court. She told the Court that she was not the investigating officer in this matter as the investigating officer was transferred to Baringo and she was guided by the police file, but did not avail the same before the trial Court.
8. PW3, Dr. Richard Njoroge Kuria, testified that he was before the Court to avail the medical report of the 1st Respondent dated 29th June 2016. According to him, on examination of the 1st Respondent he noted he had a fracture of the right thigh and fracture of the right thumb. His prognosis was that the 1st Respondent sustained soft tissue injuries as well as fracture of the distal phalanx of the right thumb with no permanent incapacity.
9. DW1, Nicholas Ndiwa Boiyo, adopted his recorded statement dated 6th February 2022 as defence evidence in chief. He testified that he was involved in a traffic accident on 6th September 2016, as he was travelling from Webuye heading for Eldoret. According to him, the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 hit his Motor Vehicle Registration Number KCB 369 E from behind as they were both head on the same direction. He told the Court that the traffic officers blamed the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 for the accident.
10. DW2, No. 95778 P.C Michael Kibet, testified that he was based at Lumakanda Police Station and he was before the Court to avail the investigation file in respect to the accident that occurred on 19th June 2016. According to him, the accident involved Motor Vehicle Registration Number KBB 441B/ZC 8092 and Motor Vehicle Registration Number KCB 369 E. He told the Court both Motor Vehicles were heading the same direction and on reaching Mabanga bridge, Motor Vehicle Registration Number KCB 369 E which was been driven at a moderate speed was hit from behind by Motor Vehicle Registration Number KBB 441B/ZC 8092 leading to it losing control and veering off the road. He blamed the driver of the Motor Vehicle Registration Number KBB 441B/ZC 8092 for the accident as he failed to maintain the 70 m distance between himself and the Motor Vehicle Registration Number KCB 369 E. He told the Court that the police recommended that the said driver be charged with traffic offence of carless driving. He availed in Court the OB extract, investigations findings and sketch maps as DEXH 2, DEXH 3 and DEXH 4 respectively. He told the Court that he was not the investigating officer and that driver of Motor Vehicle Registration Number KCB 369 E was not to blame for the accident.
E. THE APPEAL
11. The Appellant seeks to overturn the judgment on both liability and quantum as per the preferred ten (10) grounds of appeal.
12. The Appellant prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate and independent holding on liability and quantum. Subsequently, that the costs of the appeal and at the trial Court be awarded to the Appellant.
13. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
14. In view of the above, I have perused and considered evidence adduced before the trial Court together with the submissions filed herein and wish to consider whether the 1st Respondent who was the Plaintiff in the trial Court proved his claim against the Appellant on a balance of probabilities. The legal burden of proof in a civil case was discussed in the case of Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR where the Court stated as follows: -
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
15. In view of the above, the burden of proof at all times lay with the Plaintiff to prove the case and not the Defendant. In the instant case, ownership of Motor Vehicle Registration Number KBB 441B/ZC 8092 was in issue; whether the Appellant owned the vehicle. The 1st Respondent had the burden of proving that the Appellant owned the said vehicle at the time of the accident. Record show that the 1st Respondent relied on the contents of the police abstract which he produced as PEXH 2 to prove ownership of the suit motor vehicle. Further, the copy of search at the Registrar Motor Vehicles produced as PEXH 1 (a) confirmed the 3rd Respondent as the owner of Motor Vehicle Registration Number KCB 369 E.
16. Various Courts have found that a Police Abstract when produced as evidence can be sufficient proof of ownership unless it is successfully challenged. In the case of Joel Muga Opija v East African Sea Foods Ltd [2013] eKLR the Court in affirming this position held:
“In our view an exhibit is evidence and in this case the appellant’s evidence that the police recorded the respondent as the owner of the vehicle and Ouma’s evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter that evidence. We think, with respect that the learned Judge in failing to consider in depth the legal position of what is required to prove ownership erred on point of law on that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the Registrar of Motor Vehicles showing who the registered owner is, but when the Abstract is not challenged and is produced in court without any objection, its contents cannot be later denied.”
17. In the above case, the Court found that the contents of a Police Abstract is sufficient to establish ownership of a Motor Vehicle Registration Number KBB 441B/ZC 8092. It is worth noting that in civil cases, the standard of proof is that of balance of probabilities unlike criminal cases where proof is beyond reasonable doubt. The court is required to weigh evidence adduced by both parties and decide on a balance of probabilities and not beyond reasonable doubt, whether the vehicle belonged to the respondent or not.
18. From the foregoing, it is clear that proof of ownership is not only by registration by Registrar of Motor Vehicles but it can also be proved by of other documents which include police abstract unless there is sufficient challenge and each case has to be considered on its own peculiar facts.
19. On the issue of liability, the Respondent (PW1) testified that he blamed the Appellant, 2nd and 3rd Respondents for the accident that occurred on 19th June 2016. It is clear from the evidence on record both the police officers who rendered their testimonies (PW2 and DW2 respectively) blamed the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092. PW2 availed before the trial Court the police abstract form as PEXH 2 which blamed the driver for the accident and recommended his prosecution. On the other hand, DW2 availed before the trial Court the OB extract, investigations findings and sketch maps as DEXH 2, DEXH 3 and DEXH 4 respectively and testified that the driver of the Motor Vehicle Registration Number KBB 441B/ZC 8092 was to blame for the accident and that he failed to maintain a distance of 70 m between his Motor Vehicle and that of 3rd Respondent, Motor Vehicle Registration Number KCB 369 E.
20. In the case of Z O S & C A O (Suing as the Legal Representatives in the Estate of S A O (Deceased) v Amollo Stephen [2019] eKLR the Court expressed itself in respect to police abstract as follows:
“The Police Abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of an accident but proof of the fact that following an accident, the occurrence thereof was reported to the police who took cognizance of that accident. It is therefore the police, having received information or a report of occurrence of an accident, would investigate and establish circumstances under which such an accident occurred. The police abstract produced as PEx. 3 dated 21/8/2018 only provides particulars of the reported accident; the owner of the subject motor vehicle involved, the injured person being the deceased, the insurance company and particulars thereof…………That being the case, it was incumbent upon the appellant, at the time of hearing, to either call an eye witness who saw the accident take place to prove any of the listed particulars of negligence attributed to the Respondent, or to call the police from Bondo Police Station, who investigated the accident to shed light on the results of the investigations; and as to who was to blame for the subject accident wherein the deceased lost his life.”
21. The 1st Respondent said that he was a lawful passenger on Motor Vehicle Registration Number KCB 369 E when the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092 hit the said Motor Vehicle from behind. DW2 who availed in Court the sketch map and investigations findings, testified that at arriving at Mabanga bridge, Motor Vehicle Registration Number KCB 369 E, which was been driven at moderate speed was hit from behind by the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092. It was his testimony that upon impact the driver of the driver of Motor Vehicle Registration Number KCB 369 E lost control and veered off the road. DW2 blamed the driver of the driver of Motor Vehicle Registration Number KBB 441B/ZC 8092, which is owned by the Appellant herein for the accident as the driver failed to maintain the requisite 70 m distance between his Motor Vehicle and that ahead of him. Further, PW2 also blamed the Appellant’s driver for the accident and recommended his prosecution after conducting the requisite investigations. Her testimony was not challenged by the Appellant. In my view, this was sufficient in the absence of evidence to the contrary to hold the Appellant 100% liable for the accident. I hereby concur with the holding of the trial Court on liability and uphold the same.
22. With regards to quantum, it is settled law that an appellate Court will not interfere with an award of general damages by a trial Court unless:- (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. (See Dumez (Nig) Ltd v Ogboli {1972} 3 S.C. Page 196.'' Per BADA, J.C.A (P. 28, paras. C-G).
23. Additionally, in Kivati v Coastal Bottlers Ltd42 the Court of Appeal (Civil Appeal No. 69 of 1984) stated:-
“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate."
24. Award of damages is an exercise of discretion of the trial Court, but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.
25. Based on the medical report dated 30th August 2016, by Dr. Okubasu, it is clear that the 1st Respondent herein sustained:
a. Blunt injury to the neck
b. Blunt injury to the right hand
c. Fracture base to the distal phlange on the right hand
26. At the point of his examination, the 1st Respondent complained of pain in his right hand. Dr. Okubasu opined that the 1st Respondent suffered soft tissue injuries.
27. As regards general damages, the lower Court awarded Kshs.180,000/= and relied on the authorities as cited by the Appellant. (Simba Posho Mills Ltd vs Onguti (2005) eKLR).
28. Considering the nature of the injuries and the case cited above herein, I find that an award of Kshs. 180,000.00/= is not on the higher side, considering the nature of the injuries and the current trend of awards. I cannot say that it is so inordinately high as to constitute an entirely erroneous estimate. I affirm the award of the trial Court on general damages.
29. On the issue of costs, it is trite law that the issue of costs is a discretionary one that is awarded to a successful party. Furthermore, this discretion must be exercised judiciously and a party cannot be denied costs unless it can be shown that they acted unreasonably.
30. Section 27(1) of the Civil Procedure Act provides:-
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purpose aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers.
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge for good reasons otherwise order.
31. Section 27 of the Civil Procedure Act is clear that the discretion to award costs lies with the Court in any suit. This discretion must be exercised judiciously.
32. In the case of Supermarine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No 85 of 2006 the Court of Appeal stated:-
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge to decide, and the Court of Appeal will not interfere with his discretion in that instance.”
33. The matter in the Court below arose from a road traffic accident involving the 1st Respondent who was a passenger aboard Motor Vehicle KCB 369 E along Webuye-Eldoret. The matter proceeded for hearing and the trial Court rendered its judgment on 9th June 2023. The trial Court found the Appellant 100% liable. The 1st Respondent was awarded general damages in the sum of Kshs 180,000/= and special damages at Kshs. 6, 575/=. The trial Court further awarded interest at Court rates on both the general and special damages awards from the date of judgment until payment in full. The record shows that the magistrate noted that the suit against the 2nd and 3rd Respondents was dismissed with costs payable by the Appellant. The trial court erred in condemning the appellant who was a co- defendant to pay costs of the 2nd and 3rd respondents.
G. CONCLUSION
34. This appeal partially succeeds and the order condemning the appellant to pay costs of the 2nd and 3rd respondents is set aside and the 1st respondent is ordered to pay costs of the 2nd and 3rd Respondents of the lower court.
35. The appellant shall bear the costs of this appeal.
36. It is hereby so ordered.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A FOR APPELLANT
N/A FOR 1ST RESPONDENT
N/A FOR 2ND & 3RD RESPONDENTS
PETER MACHONI - COURT ASSISTANT