(Appeal from the judgement of Hon. E. W. Wambugu (SRM) delivered on 11th November 2021 in Kithimani PMCC No. 56 of 2019)
JUDGMENT
Background
1. The Appellant challenges the judgment delivered on 11th November 2021, dismissing his claim for damages arising from a road accident that occurred on 22nd September 2018 near Yatta G.K. Prison along Matuu–Thika Road.
2. By a plaint dated 5th April 2019 and filed on 11th April 2019, the Appellant pleaded that he was travelling as a passenger in motor vehicle GKB 342E when its driver negligently lost control and struck a stone. He alleged excessive speed, failure to keep a proper lookout, failure to brake or control the vehicle and failure to safeguard passengers. He sought general damages, special damages of Kshs.6,550, costs and interest.
3. The 1st Respondent’s defence dated 19th August 2019 denied negligence, ownership and liability and alleged, alternatively, that the Appellant failed to wear a seat belt and boarded without authority. The 2nd Respondent’s defence dated 28th October 2019, recorded as filed on 14th November 2019, similarly denied the claim and alleged contributory negligence. The Appellant’s replies dated 26th August 2019 and 22nd November 2019 denied those allegations.
4. At the hearing on 10th June 2021, the Appellant was the only witness. He produced his treatment documents, P3 form dated 12th October 2018, medical report dated 4th November 2018, police abstract and NTSA copy of records dated 27th November 2018. The X-ray report dated 28th September 2018 disclosed no fracture, dislocation or separation. Both Respondents closed their cases without calling witnesses.
5. The trial court found that the accident had indeed occurred, the 1st Respondent was the registered owner and the Government was the beneficial user of GKB 342E. It nevertheless dismissed the suit because negligence and the driver’s relationship with the Respondents had not been proved. It conditionally assessed general damages at Kshs.140,000 and special damages at Kshs.6,550.
6. The Appellant filed his Memorandum of Appeal dated 12th November 2021 on 2nd December 2021. The nine grounds of appeal, reproduced verbatim from the Memorandum of Appeal are as follows:
a) That the learned magistrate erred in law and in fact by dismissing the Appellant’s suit against the Respondents.
b) That the learned magistrate misdirected herself in law and in fact by finding that the Appellant had not proved his case against the Respondents, despite the overwhelming evidence led by the Appellant.
c) That the learned magistrate erred in law and in fact by failing to appreciate that the Respondents were liable for the accident.
d) That the learned magistrate erred in law and in fact by failing to address her mind to the evidence adduced and hence made an erroneous finding.
e) That the learned magistrate misdirected herself in law and in fact by placing too much reliance on the Respondents’ evidence, whereas they did not adduce it.
f) That the learned magistrate erred in law and in fact by failing to consider the totality of the evidence adduced at trial.
g) That the learned magistrate erred in law and in fact by failing to consider the parties’ written submissions.
h) That the learned magistrate erred in law and in fact by failing to assess the damages that would have been awarded to the Plaintiff, as required by law.
i) That the learned magistrate misdirected herself in law and in fact by failing to find that, at the very least, the Respondents were liable for the incident.
Reliefs sought
The Appellant prayed that:
a. The appeal be allowed;
b. The judgment made in Kithimani PMCC No. 56 of 2019 on 11th November 2021 be set aside;
c. Judgment be entered in favour of the Appellant against the Respondents, and the Court assess the damages payable to the Appellant; and
d. The costs of this appeal be provided for.
Parties’ arguments
7. The Appellant submitted that his evidence was uncontroverted because the Respondents called no witnesses. As a passenger, he had no control over the vehicle. He argued that the driver was speeding, failed to control the vehicle and should have been found negligent. He relied on John Wainaina Kagwe v Hussein Dairy Limited [2013] eKLR for the principle that unsupported pleadings remain mere allegations. He further argued that the Respondents should have joined the owner of the cow as a third party and sought Kshs.300,000 in general damages.
8. The 1st Respondent argued that the legal burden remained with the Appellant. His own evidence was that a cow suddenly crossed the road, the driver swerved to avoid it, he did not see the speedometer and there was nothing else the driver could have done. It further argued that registration alone did not prove vicarious liability, and that the Appellant voluntarily travelled in a rear carrier without a seat belt.
9. The 2nd Respondent similarly argued that sections 107-109 of the Evidence Act placed the burden upon the Appellant. It contended that the accident resulted from the sudden presence of a cow and not proved negligence. Both Respondents maintained that the trial court considered the submissions and properly assessed damages.
Issues for Determination
10. Having considered the record of appeal and the parties’ submissions, I find that the issues for determination are:
a. Whether the Appellant proved negligence and what effect followed from the Respondents’ failure to call evidence;
b. Whether vicarious liability was established against either Respondent;
c. Whether the trial court erred in finding that the Appellant was an unlawful passenger or contributorily negligent; and
d. Whether the trial court properly considered the submissions and assessed damages.
Analysis and Determination
Negligence and effect of failure to call evidence
11. This being a first appeal, the Court is required to reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. An appellate court will not ordinarily interfere with findings of fact unless they are unsupported by evidence, based upon a misapprehension of the evidence or founded on a wrong principle. See Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Ephantus Mwangi & another v Duncan Mwangi Wambugu [1982–1988] 1 KAR 278.
12. Sections 107-109 of the Evidence Act placed the burden upon the Appellant to prove the pleaded negligence on a balance of probabilities. The occurrence of an accident and production of a police abstract did not, without sufficient direct or circumstantial evidence, prove negligence.
13. It was not disputed that the accident occurred, that the Appellant was travelling in GKB 342E and that he sustained injuries. The decisive question is whether the evidence proved that the driver negligently caused the accident.
14. Although the Appellant pleaded excessive speed and failure to brake, keep a proper lookout or control the vehicle, his cross-examination supplied the only detailed account of the accident. He stated that the weather was clear but slightly misty, the road was tarmacked and sloping, a cow entered the road, the driver swerved to avoid it and the vehicle struck a large stone. He did not see the speedometer and could not state the vehicle’s actual speed. He also stated that he did not think there was anything else the driver could have done, although he later suggested that the driver might have stopped.
15. The Appellant did not establish the distance at which the cow became visible, the speed of the vehicle, the available stopping distance, the position of the stone or whether a safe alternative course was available. No other passenger, driver or investigating officer testified, and no scene sketch, photographs, inspection report or traffic-investigation findings were produced. The police abstract did not assign blame.
16. A sudden emergency does not automatically absolve a driver. The Court must consider whether the driver created or contributed to the emergency and whether his reaction was reasonable. In the instant case, however, there was no evidence that the driver was travelling too fast, failed to observe the cow within a reasonable time or adopted an unreasonable evasive manoeuvre. The mere fact that the vehicle struck a stone after swerving does not, by itself, establish negligence.
17. The doctrine of res ipsa loquitur did not cure that evidential deficiency. The Appellant’s own evidence supplied a definite explanation for the accident, namely that the driver swerved to avoid a cow. Once that explanation emerged, the Appellant had to establish that the driver’s speed, lookout or response was unreasonable. He did not do so.
18. The argument that the Respondents ought to have joined the cow’s owner as a third party is also unpersuasive. Third-party proceedings facilitate contribution or indemnity after a defendant’s liability is established; they do not relieve a claimant of the burden of proving negligence. Moreover, no evidence identified the cow’s owner.
19. The Respondents’ failure to call witnesses meant that the allegations in their defences, including distraction, attempted alighting, absence of authority and violation of traffic rules, remained unsupported. Pleadings are not evidence. It did not, however, follow that the Appellant automatically became entitled to judgment. Even uncontroverted evidence must meet the required standard of proof as was held in John Wainaina Kagwe v Hussein Dairy Limited [2013] eKLR and Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR.
20. I therefore find that the Appellant did not prove any of the pleaded acts of negligent driving on a balance of probabilities.
Ownership and vicarious liability
21. The NTSA copy of records established that the 1st Respondent was the registered owner of GKB 342E. The government registration number, police abstract and evidence that the vehicle was attached to the police service supported the finding that the Government was its beneficial user or possessor. Registration is, however, only prima facie evidence of ownership. This was applied in Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR.
22. Ownership of a vehicle does not, by itself, establish vicarious liability. The claimant must prove an employment or agency relationship and that the tort was committed in the course and scope of that relationship as applicable from John Nderi Wamugi v Ruhesh Okumu Otiangala & 2 others [2015] eKLR and BM Security Limited v Kibira & another [2025] KECA 166 (KLR).
23. The evidence did not establish that the 1st Respondent employed, instructed or controlled the driver. It instead pointed to the Government’s possession and operational use of the vehicle. As against the 2nd Respondent, the registration mark, police use and the Appellant’s status as a police officer provided circumstantial evidence that the driver was acting for the Government. The driver’s identity, deployment instructions and work ticket were matters particularly within the Government’s knowledge.
24.The failure to produce those records could support an inference concerning Government control of the vehicle. That issue does not, however, alter the outcome because vicarious liability is derivative and depends upon proof of an actionable tort by the employee or agent. Since negligent driving was not proved, there was no primary liability to transmit to either Respondent.
25. The failure to join the driver was not an absolute procedural bar to a claim based on vicarious liability. His absence nevertheless left material gaps concerning the manner in which the accident occurred and his relationship with the Respondents.
Passenger status, assumption of risk and contributory negligence
26. The trial court found that the Appellant was an unlawful passenger because he was off duty and did not produce a work ticket or Occurrence Book entry. That finding was not supported by the evidence.
27. Being off duty did not, without proof of the applicable police regulations or transport instructions, establish that the Appellant was prohibited from travelling in a government vehicle. The Respondents pleaded that he boarded without authority and therefore bore the evidential burden of proving that affirmative allegation, but they called no witnesses.
28. The Appellant stated that police officers were permitted to travel in government vehicles and that his presence was recorded in an Occurrence Book at Wajir. His failure to produce the record weakened his assertion but did not establish that he was unlawfully on board. The trial court therefore converted an absence of corroboration into proof of illegality. Its finding that the Appellant was an unlawful passenger must be set aside.
29. The defence of volenti non fit injuria was also not proved. Acceptance of a lift, even in the rear carrier of a vehicle, does not amount to consent to negligent driving or a waiver of a claim arising from lack of reasonable care. See United Millers Limited & another v John Mangoro Njogu [2016] eKLR.
30. Failure to wear a safety belt did not contribute to the occurrence of the accident. It could only amount to contributory negligence concerning the extent of the injuries if it was proved that a belt was available, the Appellant failed to use it and its use would probably have prevented or reduced the injuries. No medical or technical evidence was tendered on those matters. Contributory negligence based on the absence of a safety belt was therefore not proved.
Written submissions and quantum
31. The Appellant’s complaint that the trial court failed to consider the parties’ written submissions is contradicted by the impugned judgment, which summarised the parties’ respective arguments and authorities. A court must consider the submissions but is not required to reproduce every argument or authority.
32. The complaint that the trial court failed to assess damages is similarly unsupported. The magistrate expressly stated that, had liability been proved, she would have awarded Kshs. 140,000 in general damages and Kshs. 6,550 in special damages.
33. The Appellant sustained a tender mild haematoma over the chest, tenderness over the right scapular region and a tender right shoulder with temporary limitation of movement. The X-ray disclosed no fracture, dislocation or separation, while the medical report classified the injuries as soft-tissue injuries without permanent incapacity.
34. It is settled that an appellate court will only interfere with an award of damages if the trial court applied a wrong principle, considered an irrelevant matter, omitted a relevant factor or made an award so high or low as to represent an erroneous estimate as applied in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-1988] KAR 5.
35. Having considered the injuries and the comparable awards cited by the parties, including Philip Musyoka Mutua v Mercy Ngina Syovo [2018] eKLR, Maimuna Kilungya v Motrex Transporters Ltd [2019] eKLR, Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR and Andy Forwarders Services Limited & 2 others v James Mungai Wanjiru [2019] eKLR, I find that the conditional award of Kshs. 140,000 was reasonable and proportionate.
36. The special damages of Kshs. 6,550 were specifically pleaded and supported by receipts. The trial court’s conditional assessment of that amount was proper.
Merit of the Appeal
37. The Appellant proved that the accident occurred, that he was travelling in GKB 342E, that the 1st Respondent was the registered owner, that the Government was the vehicle’s beneficial user and that he sustained soft-tissue injuries. He did not, however, prove that negligent driving caused the accident.
38. The Respondents’ failure to call evidence left their affirmative allegations unsupported, but it did not relieve the Appellant of the burden of proving his case. His own evidence disclosed that the driver swerved to avoid a cow, while no evidence established excessive speed, inadequate lookout, sufficient stopping distance, an unreasonable evasive manoeuvre or a mechanical defect.
39. The trial court erred in finding that the Appellant was an unlawful passenger. The Respondents also failed to establish voluntary assumption of risk or contributory negligence based on the absence of a safety belt. Those errors do not affect the ultimate dismissal of the suit because primary negligence was not proved.
Disposition
Consequently, I make the following final orders:
a. The appeal is dismissed.
b. The dismissal of Kithimani PMCC No. 56 of 2019 is upheld.
c. The finding that the Appellant was an unlawful passenger is set aside.
d. The findings that the Appellant voluntarily assumed the risk or was contributorily negligent for failing to wear a safety belt are set aside.
e. The conditional assessment of Kshs. 140,000 in general damages and Kshs. 6,550 in special damages is affirmed.
f. The trial court’s order on costs remains undisturbed.
g. As the Appellant has succeeded in overturning material adverse findings but has failed on the substantive issue of negligence, each party shall bear its own costs of the appeal.
READ AND PUBLISHED THIS 4TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI
JUDGE OF THE HIGH COURT
JUDGMENT
Background
1. The Appellant challenges the judgment delivered on 11th November 2021, dismissing his claim for damages arising from a road accident that occurred on 22nd September 2018 near Yatta G.K. Prison along Matuu–Thika Road.
2. By a plaint dated 5th April 2019 and filed on 11th April 2019, the Appellant pleaded that he was travelling as a passenger in motor vehicle GKB 342E when its driver negligently lost control and struck a stone. He alleged excessive speed, failure to keep a proper lookout, failure to brake or control the vehicle and failure to safeguard passengers. He sought general damages, special damages of Kshs.6,550, costs and interest.
3. The 1st Respondent’s defence dated 19th August 2019 denied negligence, ownership and liability and alleged, alternatively, that the Appellant failed to wear a seat belt and boarded without authority. The 2nd Respondent’s defence dated 28th October 2019, recorded as filed on 14th November 2019, similarly denied the claim and alleged contributory negligence. The Appellant’s replies dated 26th August 2019 and 22nd November 2019 denied those allegations.
4. At the hearing on 10th June 2021, the Appellant was the only witness. He produced his treatment documents, P3 form dated 12th October 2018, medical report dated 4th November 2018, police abstract and NTSA copy of records dated 27th November 2018. The X-ray report dated 28th September 2018 disclosed no fracture, dislocation or separation. Both Respondents closed their cases without calling witnesses.
5. The trial court found that the accident had indeed occurred, the 1st Respondent was the registered owner and the Government was the beneficial user of GKB 342E. It nevertheless dismissed the suit because negligence and the driver’s relationship with the Respondents had not been proved. It conditionally assessed general damages at Kshs.140,000 and special damages at Kshs.6,550.
6. The Appellant filed his Memorandum of Appeal dated 12th November 2021 on 2nd December 2021. The nine grounds of appeal, reproduced verbatim from the Memorandum of Appeal are as follows:
a) That the learned magistrate erred in law and in fact by dismissing the Appellant’s suit against the Respondents.
b) That the learned magistrate misdirected herself in law and in fact by finding that the Appellant had not proved his case against the Respondents, despite the overwhelming evidence led by the Appellant.
c) That the learned magistrate erred in law and in fact by failing to appreciate that the Respondents were liable for the accident.
d) That the learned magistrate erred in law and in fact by failing to address her mind to the evidence adduced and hence made an erroneous finding.
e) That the learned magistrate misdirected herself in law and in fact by placing too much reliance on the Respondents’ evidence, whereas they did not adduce it.
f) That the learned magistrate erred in law and in fact by failing to consider the totality of the evidence adduced at trial.
g) That the learned magistrate erred in law and in fact by failing to consider the parties’ written submissions.
h) That the learned magistrate erred in law and in fact by failing to assess the damages that would have been awarded to the Plaintiff, as required by law.
i) That the learned magistrate misdirected herself in law and in fact by failing to find that, at the very least, the Respondents were liable for the incident.
Reliefs sought
The Appellant prayed that:
a. The appeal be allowed;
b. The judgment made in Kithimani PMCC No. 56 of 2019 on 11th November 2021 be set aside;
c. Judgment be entered in favour of the Appellant against the Respondents, and the Court assess the damages payable to the Appellant; and
d. The costs of this appeal be provided for.
Parties’ arguments
7. The Appellant submitted that his evidence was uncontroverted because the Respondents called no witnesses. As a passenger, he had no control over the vehicle. He argued that the driver was speeding, failed to control the vehicle and should have been found negligent. He relied on John Wainaina Kagwe v Hussein Dairy Limited [2013] eKLR for the principle that unsupported pleadings remain mere allegations. He further argued that the Respondents should have joined the owner of the cow as a third party and sought Kshs.300,000 in general damages.
8. The 1st Respondent argued that the legal burden remained with the Appellant. His own evidence was that a cow suddenly crossed the road, the driver swerved to avoid it, he did not see the speedometer and there was nothing else the driver could have done. It further argued that registration alone did not prove vicarious liability, and that the Appellant voluntarily travelled in a rear carrier without a seat belt.
9. The 2nd Respondent similarly argued that sections 107-109 of the Evidence Act placed the burden upon the Appellant. It contended that the accident resulted from the sudden presence of a cow and not proved negligence. Both Respondents maintained that the trial court considered the submissions and properly assessed damages.
Issues for Determination
10. Having considered the record of appeal and the parties’ submissions, I find that the issues for determination are:
a. Whether the Appellant proved negligence and what effect followed from the Respondents’ failure to call evidence;
b. Whether vicarious liability was established against either Respondent;
c. Whether the trial court erred in finding that the Appellant was an unlawful passenger or contributorily negligent; and
d. Whether the trial court properly considered the submissions and assessed damages.
Analysis and Determination
Negligence and effect of failure to call evidence
11. This being a first appeal, the Court is required to reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. An appellate court will not ordinarily interfere with findings of fact unless they are unsupported by evidence, based upon a misapprehension of the evidence or founded on a wrong principle. See Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Ephantus Mwangi & another v Duncan Mwangi Wambugu [1982–1988] 1 KAR 278.
12. Sections 107-109 of the Evidence Act placed the burden upon the Appellant to prove the pleaded negligence on a balance of probabilities. The occurrence of an accident and production of a police abstract did not, without sufficient direct or circumstantial evidence, prove negligence.
13. It was not disputed that the accident occurred, that the Appellant was travelling in GKB 342E and that he sustained injuries. The decisive question is whether the evidence proved that the driver negligently caused the accident.
14. Although the Appellant pleaded excessive speed and failure to brake, keep a proper lookout or control the vehicle, his cross-examination supplied the only detailed account of the accident. He stated that the weather was clear but slightly misty, the road was tarmacked and sloping, a cow entered the road, the driver swerved to avoid it and the vehicle struck a large stone. He did not see the speedometer and could not state the vehicle’s actual speed. He also stated that he did not think there was anything else the driver could have done, although he later suggested that the driver might have stopped.
15. The Appellant did not establish the distance at which the cow became visible, the speed of the vehicle, the available stopping distance, the position of the stone or whether a safe alternative course was available. No other passenger, driver or investigating officer testified, and no scene sketch, photographs, inspection report or traffic-investigation findings were produced. The police abstract did not assign blame.
16. A sudden emergency does not automatically absolve a driver. The Court must consider whether the driver created or contributed to the emergency and whether his reaction was reasonable. In the instant case, however, there was no evidence that the driver was travelling too fast, failed to observe the cow within a reasonable time or adopted an unreasonable evasive manoeuvre. The mere fact that the vehicle struck a stone after swerving does not, by itself, establish negligence.
17. The doctrine of res ipsa loquitur did not cure that evidential deficiency. The Appellant’s own evidence supplied a definite explanation for the accident, namely that the driver swerved to avoid a cow. Once that explanation emerged, the Appellant had to establish that the driver’s speed, lookout or response was unreasonable. He did not do so.
18. The argument that the Respondents ought to have joined the cow’s owner as a third party is also unpersuasive. Third-party proceedings facilitate contribution or indemnity after a defendant’s liability is established; they do not relieve a claimant of the burden of proving negligence. Moreover, no evidence identified the cow’s owner.
19. The Respondents’ failure to call witnesses meant that the allegations in their defences, including distraction, attempted alighting, absence of authority and violation of traffic rules, remained unsupported. Pleadings are not evidence. It did not, however, follow that the Appellant automatically became entitled to judgment. Even uncontroverted evidence must meet the required standard of proof as was held in John Wainaina Kagwe v Hussein Dairy Limited [2013] eKLR and Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR.
20. I therefore find that the Appellant did not prove any of the pleaded acts of negligent driving on a balance of probabilities.
Ownership and vicarious liability
21. The NTSA copy of records established that the 1st Respondent was the registered owner of GKB 342E. The government registration number, police abstract and evidence that the vehicle was attached to the police service supported the finding that the Government was its beneficial user or possessor. Registration is, however, only prima facie evidence of ownership. This was applied in Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR.
22. Ownership of a vehicle does not, by itself, establish vicarious liability. The claimant must prove an employment or agency relationship and that the tort was committed in the course and scope of that relationship as applicable from John Nderi Wamugi v Ruhesh Okumu Otiangala & 2 others [2015] eKLR and BM Security Limited v Kibira & another [2025] KECA 166 (KLR).
23. The evidence did not establish that the 1st Respondent employed, instructed or controlled the driver. It instead pointed to the Government’s possession and operational use of the vehicle. As against the 2nd Respondent, the registration mark, police use and the Appellant’s status as a police officer provided circumstantial evidence that the driver was acting for the Government. The driver’s identity, deployment instructions and work ticket were matters particularly within the Government’s knowledge.
24.The failure to produce those records could support an inference concerning Government control of the vehicle. That issue does not, however, alter the outcome because vicarious liability is derivative and depends upon proof of an actionable tort by the employee or agent. Since negligent driving was not proved, there was no primary liability to transmit to either Respondent.
25. The failure to join the driver was not an absolute procedural bar to a claim based on vicarious liability. His absence nevertheless left material gaps concerning the manner in which the accident occurred and his relationship with the Respondents.
Passenger status, assumption of risk and contributory negligence
26. The trial court found that the Appellant was an unlawful passenger because he was off duty and did not produce a work ticket or Occurrence Book entry. That finding was not supported by the evidence.
27. Being off duty did not, without proof of the applicable police regulations or transport instructions, establish that the Appellant was prohibited from travelling in a government vehicle. The Respondents pleaded that he boarded without authority and therefore bore the evidential burden of proving that affirmative allegation, but they called no witnesses.
28. The Appellant stated that police officers were permitted to travel in government vehicles and that his presence was recorded in an Occurrence Book at Wajir. His failure to produce the record weakened his assertion but did not establish that he was unlawfully on board. The trial court therefore converted an absence of corroboration into proof of illegality. Its finding that the Appellant was an unlawful passenger must be set aside.
29. The defence of volenti non fit injuria was also not proved. Acceptance of a lift, even in the rear carrier of a vehicle, does not amount to consent to negligent driving or a waiver of a claim arising from lack of reasonable care. See United Millers Limited & another v John Mangoro Njogu [2016] eKLR.
30. Failure to wear a safety belt did not contribute to the occurrence of the accident. It could only amount to contributory negligence concerning the extent of the injuries if it was proved that a belt was available, the Appellant failed to use it and its use would probably have prevented or reduced the injuries. No medical or technical evidence was tendered on those matters. Contributory negligence based on the absence of a safety belt was therefore not proved.
Written submissions and quantum
31. The Appellant’s complaint that the trial court failed to consider the parties’ written submissions is contradicted by the impugned judgment, which summarised the parties’ respective arguments and authorities. A court must consider the submissions but is not required to reproduce every argument or authority.
32. The complaint that the trial court failed to assess damages is similarly unsupported. The magistrate expressly stated that, had liability been proved, she would have awarded Kshs. 140,000 in general damages and Kshs. 6,550 in special damages.
33. The Appellant sustained a tender mild haematoma over the chest, tenderness over the right scapular region and a tender right shoulder with temporary limitation of movement. The X-ray disclosed no fracture, dislocation or separation, while the medical report classified the injuries as soft-tissue injuries without permanent incapacity.
34. It is settled that an appellate court will only interfere with an award of damages if the trial court applied a wrong principle, considered an irrelevant matter, omitted a relevant factor or made an award so high or low as to represent an erroneous estimate as applied in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-1988] KAR 5.
35. Having considered the injuries and the comparable awards cited by the parties, including Philip Musyoka Mutua v Mercy Ngina Syovo [2018] eKLR, Maimuna Kilungya v Motrex Transporters Ltd [2019] eKLR, Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR and Andy Forwarders Services Limited & 2 others v James Mungai Wanjiru [2019] eKLR, I find that the conditional award of Kshs. 140,000 was reasonable and proportionate.
36. The special damages of Kshs. 6,550 were specifically pleaded and supported by receipts. The trial court’s conditional assessment of that amount was proper.
Merit of the Appeal
37. The Appellant proved that the accident occurred, that he was travelling in GKB 342E, that the 1st Respondent was the registered owner, that the Government was the vehicle’s beneficial user and that he sustained soft-tissue injuries. He did not, however, prove that negligent driving caused the accident.
38. The Respondents’ failure to call evidence left their affirmative allegations unsupported, but it did not relieve the Appellant of the burden of proving his case. His own evidence disclosed that the driver swerved to avoid a cow, while no evidence established excessive speed, inadequate lookout, sufficient stopping distance, an unreasonable evasive manoeuvre or a mechanical defect.
39. The trial court erred in finding that the Appellant was an unlawful passenger. The Respondents also failed to establish voluntary assumption of risk or contributory negligence based on the absence of a safety belt. Those errors do not affect the ultimate dismissal of the suit because primary negligence was not proved.
Disposition
Consequently, I make the following final orders:
a. The appeal is dismissed.
b. The dismissal of Kithimani PMCC No. 56 of 2019 is upheld.
c. The finding that the Appellant was an unlawful passenger is set aside.
d. The findings that the Appellant voluntarily assumed the risk or was contributorily negligent for failing to wear a safety belt are set aside.
e. The conditional assessment of Kshs. 140,000 in general damages and Kshs. 6,550 in special damages is affirmed.
f. The trial court’s order on costs remains undisturbed.
g. As the Appellant has succeeded in overturning material adverse findings but has failed on the substantive issue of negligence, each party shall bear its own costs of the appeal.
READ AND PUBLISHED THIS 4TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI
JUDGE OF THE HIGH COURT