(Being an appeal from the judgment of Hon. C.N. Ondieki, delivered on 21st December 2023 in CMCC E196 of 2022 at the Chief Magistrate’s Court, Machakos.)
1. The appeal before me arises from Machakos CMCC No. E196 of 2022 in which judgment was entered against the appellant holding it 100% liable. The trial court awarded General damages for Kshs. 350,000/- and Special damages at Kshs. 5,700/-.
2. The genesis of this suit can be traced to a plaint dated 6th June 2022 where the respondent sued the appellant seeking special damages in the sum of Kshs 5700/-, general damages for pain, suffering and loss of amenities, costs of the suit, interest at court rates, and any other relief the court deemed fit and just to grant.
3. In the plaint, the respondent averred that on or about the 15th of March 2022, while lawfully traveling in motor vehicle Registration No. KCB 450R, Scania Bus along the Kitui-Machakos road near Kithangathini Area, the appellant’s driver, servant and or agent, negligently drove, controlled and/or managed the said motor vehicle that he permitted it to hit a road bump at a high speed. As a result, the respondent was thrown against the bus carrier, and sustained severe injuries and suffered loss and damage.
4. The appellant in a defense dated 17th June 2022 denied the respondent’s claim in its entirety, put the respondent to strict proof, and pleaded in the alternative that if the accident did occur, it was solely caused by the respondent.
5. Upon hearing both parties, the trial court in its judgment dated 21st December 2023, held that the appellant was 100% liable for the accident. Consequently, the trial court awarded Kshs 350,000 in general damages for pain and suffering with interest at court rates from the date of judgment till payment in full, Kshs 5,700 as special damages from the date of filing the suit till payment in full, and costs of the suit, with interest at court rates, from the date of the judgment till payment in full.
6. Aggrieved by the decision, the appellant filed this appeal raising eleven (11) grounds reproduced verbatim as follows. That-:
(1) The learned trial magistrate erred in law and in fact in finding the appellant 100% liable.
(2) The learned trial magistrate erred in law and in fact in finding that failure by the appellant to avail a witness automatically proves that the respondent's claim is undisputed.
(3) The learned trial magistrate erred in law and in fact in failing to find that the respondent had the burden to prove negligence/liability on the part of the appellant and the injuries sustained on the required standard of proof.
(4) The learned trial magistrate erred in law and in fact in finding that the respondent sustained injuries alleged when no initial treatment notes had been availed as proof of the same.
(5) The learned trial magistrate erred in law and in fact in failing to take into account the fact that out of 26 passengers in the vehicle the respondent was travelling in, only the respondent was involved in an accident and sustained injuries.
(6) The learned trial magistrate erred in law and in fact in finding that the respondent sustained injuries stated in the Plaint when the alleged injuries were not backed by any evidence.
(7) The learned trial magistrate erred in law and in fact in failing to find that the respondent's injuries and entire claim is fabricated
(8) The learned trial magistrate erred in law and in fact in failing to take into account authorities cited by the appellant in relation to proof of injuries and negligence.
(9) The learned trial magistrate erred in law and in fact assessing the damages payable for general damages at an inordinate high.
(10) The learned trial magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the appellants.
(11) In all the circumstances of the case, the learned trial magistrate failed to do justice.
7. Consequently, the appellants pray that the appeal be allowed, the judgment of the trial court be set aside and substituted with a proper award. They also seek costs of this appeal and of the suit in the Magistrate’s, court together with any other relief this Honourable Court may deem fit to grant.
8. The appeal was canvassed by way of written submissions. The appellant filed written submissions as summarised below.
9. The appellant submits that the respondent’s claim is fabricated, as the injuries alleged are not consistent with the circumstances of the accident as alleged by the respondent.
10. It is the appellant’s case that the key question is whether negligence was proved against the driver and whether the respondent’s treatment notes establish that he sustained injuries in the accident. The appellant emphasizes that no other passenger among the 26 on board complained of injury, which casts doubt on the respondent’s account.
11. the appellant argues that the mere absences of its witness does not automatically render the respondent’s evidence uncontroverted. Reliance is placed on the Court of Appeal’s decisions in Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & another [2014] eKLR and Charterhouse Bank Limited (under statutory management vs. Frank N. Kamau (2016) eKLR to buttress this submission.
12. It is further urged that no negligence was proved against the appellants and the decisions in Treadsetter Tyres Ltd vs John Wekesa Wepukhulu (2010) eKLR, East Produce Kenya Limited -v- Christopher Astiado Osiro in Civil Appeal no. 43/01 and Nairobi HCCA No.152 of 2003, Statpack Industries Limited vs James Mbithi quoted in Nakuru HCCA N0. 320 Of 2004 Timsales LTD vs Willy Nganga Wanjohi are relied on to urge its case.
13. On the award for pain and suffering, the appellant submits that the respondent failed to produce the initial treatment notes following the alleged accident of 15th March 2022. It is argued that the injuries pleaded vary across the Plaint, the Medical Report by Dr. John Mutunga and the Medical Report from Neema Hospital. The appellant relies on Fadna Issa Omar v Malne Sirengo Chipo & 3 others [2016] EKLR and Timsales Limited v Wilson Libuywa Nakuru HCCA N0. 135 of 2006 to bolster this submission
14. The appellant contends that the only injury suffered by the respondent if any, was blunt injury to the left eye. It submits that, subject to apportionment of liability, an award of Kshs. 30,000/- would adequately compensate the respondent as general damages considering comparable awards issued by the courts.
15. On special damages, the appellant argues that the trial court erred in awarding Kshs 5,700/- as only Kshs. 2,000/- (medical report) and Kshs. 550/- (motor vehicle search) were proved.
16. The appellant concludes by urging this court to dismiss this appeal with costs.
Respondent’s submissions
17. The respondent submits that his evidence stood unchallenged, as the appellant failed to call any witnesses. He relies on the case of Alex Kipchirchir Rono v Lomsons enterprises (Civil Case 5 of 2019) to buttress this submission.
18. It is argued that the appellant’s driver owed the respondent a duty of care and ought not to have exposed him to imminent risk. Reliance is placed on the decision in Mary Njeri Murugi vs Peter Macharia & Another HCCC NO.318 of 2012 Nairobi.
19. The respondent maintains that the damages awarded by the trial court were a fair and just compensation for the injuries sustained.
Analysis and determination
20. I have carefully considered the grounds of appeal, examined the record and supplementary record of appeal, and reviewed the submissions of both parties. This appeal challenged both the finding of liability apportioned at 1oo% against the appellant and the quantum of damages awarded by the trial court.
21. Accordingly, the issues for determination are (i) whether the trial court erred in apportioning liability wholly against the appellant and (ii) whether the awards of pain and suffering, and special damages granted were erroneous or unjustified and/or excessive in the circumstances.
22. This being a first appeal, the duty of this Court is well settled. As stated in Selle v. Associated Motor Boat Co. Ltd [1968] EA, a first appellate court must reconsider the evidence, evaluate it afresh, and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses firsthand.
Whether the trial court erred in apportioning liability wholly against the appellant
23. Turning to liability, the question is whether the trial court erred in holding the appellant 100% liable for the accident.
24. The appellant contends that the respondent’s claim was fabricated, that negligence was not proved, and that the absences of its witnesses did not respondent’s case uncontroverted. Conversely, the respondent maintains that he proved his case through medical evidence and the testimony of a police officer which remained unchallenged.
25. The legal burden of proof is set out under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya which provides that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
26. The evidential burden is further captured under Sections 109 and 112 of the Evidence Act, which place the burden of proving particular facts on the party asserting them, and where facts are especially within the knowledge of a party, the burden lies on that party. It provides as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
27. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR emphasized that in negligence claims, the burden is always on the plaintiff to prove that the accident was caused by the defendant’s negligence. However, once a prima facie inference of negligence is established, the burden shifts to the defendant to displace it with adequate evidence.In the present case, the record contains a Medical Report dated 5th April 2024 confirming that the respondent reported involvement in a road traffic accident on 15th March 2022 at 1509hrs .
28. Additionally, medical reports from Neema Hospital dated 15th March 2022 as well as a Medical Report by Machakos Level 5 Hospital signed by Doctor John Mutunga, confirm injuries sustained as a result of a road accident which occurred on 15th March 2022. The injuries include blunt injury left eye, cut wound left eye lower eye lid, blunt injury to nasal bridge and cut wound nasal bridge.
29. A police abstract dated 5th May 2022 corroborates the occurrence of the accident, on 15th March 2022, and the sworn testimony of PC Dennis Oloo attached at traffic Mwala Subbase, who attended the scene, further supports the respondent’s account.
30. Although the appellant contends that the respondent’s claim was fabricated, or that he contributed to the accident, no evidence was adduced to support these assertions. I am therefore unconvinced that the appellant tendered any credible evidence capable of displacing liability from itself to the respondent.
31. In so finding, I am guided by the Court of Appeal decision in Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR) where it observed:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…
“The question must be determined by applying common sense to the facts of each particular case.”
32. Similarly, in Mumbi M'Nabea v David M.Wachira [2016] KECA 773 (KLR), the Court of Appeal emphasized that the standard of proof in civil liability claims is on a balance of probabilities, requiring the court to assess the evidence and determine which version of events is more probable.
33. In the present case, the medical reports on record, the Police Abstract, and the sworn testimony of PC Oloo who visited the accident scene, collectively establish that the respondent sustained injuries in the accident. With no rebuttal evidence from the appellant, I am satisfied that the respondent proved his case on a balance of probabilities.
34. I therefore find the holding of the trial court on liability at 100% as proper. I see no justifiable reason to disturb that determination, the same is hereby upheld.
Whether the awards of pain and suffering, and special damages granted were erroneous or unjustified and/or excessive in the circumstances
35. On general damages for pain and suffering, the trial court awarded the Kshs 350,000. The appellant challenges this award as excessive, while the respondent maintains that it was fair compensation for the injuries sustained.
36. The principles governing appellate interference with awards of damages are well settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR the Court of Appeal held that:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
37. Likewise, in Butt v. Khan, Civil Appeal No. 40 of 1997 it was held:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrive at a figure which was either inordinately high or low.”
38. Further, the Court of Appeal in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 71 (KLR) observed and gave the following guidelines:
“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.
1. Each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
3. comparable injuries should attract comparable awards.
4. inflation should be taken into account; and
5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.”
39. It is also prudent to point out that Halsbury's Laws of England, 4th Edition, Volume 12(1), page 348 at paragraph 883, states:
"883. Pain and suffering. Damages are awarded for the physical and mental distress caused to the Plaintiff, both pre-trial and in the future as a result of the injury. This includes the pain caused by the injury itself, and the treatment intended to alleviate it, the awareness of and embarrassment at the disability or disfigurement, or suffering caused by anxiety that the Plaintiffs' condition may deteriorate."
40. What therefore emerges is that the principles on which an appellate court will disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court considered irrelevant factors in assessing the damages. As such, the question that arises is whether the trial court’s award of Kshs 350,000/- was excessive and unjustified.
41. The medical report evidence shows that the respondent sustained soft tissue injuries to the eye and nasal bridge, with no disability.
42. The respondent relied on Martin Mugi -vs- Attorney General HCCC NO. 791 of 1999 and Catherine Wanjiru King'ori & 3 Others vs Gibson Theuri Gichubi (2005) eKLR where awards of Kshs. 300,000/- were granted for pain and suffering. In Martin Mugi -vs- Attorney General case (supra), one of the injuries involved a deep extensive cut to the face requiring cosmetic surgery estimated at Kshs 100,000/- to reconstruct the facial scar. In my considered view, this case is not comparable with the present matter, where the injuries were soft tissue in nature and did not result in permanent disability. Similarly, in Catherine Wanjiru King'ori case (supra), four plaintiffs sustained varied injuries and were awarded different sums ranging from Kshs 100,000/-, to, Kshs 350,000/-. Again, the factual matrix of that case is not directly comparable to the instant case.
43. On perusal of authorities involving similar or comparable injuries, I note that awards for multiple soft tissue injuries generally range at between Kshs 100,000/- and Kshs 200,000/- depending on the severity of the injuries.
44. For instance, in Channan Agricultural Contractors Ltd v Fred Barasa Mutayi [2013] KEHC 1478 (KLR), Chitembwe J, on 30th October 2013, reviewed downwards an award of Kshs. 250,000 to Kshs. 150,000 for moderate soft tissue injuries. In George Kinyanjui T/A Climax Coaches & another v Hussein Mahad Kuyale [2016] KEHC 7251 (KLR), Kimondo J on 19th January 2016, reviewed downwards an award of Kshs. 650,000/- to Kshs. 109,890/- for soft tissue injuries.
45. Other comparable cases include JFM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, R. Nyakundi J on 10th December 2020 increased an award of Kshs 60,000/- to Kshs 100,000/-.
46. In Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR, R. Nyakundi J on 15th April 2020, reduced an award of Kshs 350,000/- to Kshs 140,000/-.
47. In Francis Omari Ogaro v JAO (minor suing through next friend and father GOD [2021] eKLR, E. Maina J on 28th October 2021 reduced an award of Kshs 230,000/- to Kshs 180,000/-.
48. In Ogola v Kihiu [2023] KEHC 17705 (KLR), Anuro J, on 26th May 2023, reduced an award of Kshs 3o0,000/- to Kshs 180,000/- for multiple soft tissue injuries.
49. Taking into account these authorities, the prevailing economic conditions and the need to ensure fair I find the award of Kshs. 350,000/- by the trial court to be substantially excessive to justify interference by this court.
50. Accordingly, I set aside the award of Kshs 350,000/- awarded in general damages and substitute it with an award of Kshs 150,000/-.
51. On special damages, the trial court awarded Kshs 5700/- which the appellant faults for being erroneous while the respondent maintains that it was properly granted.
52. It is now firmly established that special damages must not only be specifically pleaded but also strictly proved, before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
53. In this case, the respondent pleaded Kshs. 5,700/- as special damages, comprising medical and related expenses (Kshs. 2,000/-), medical report (Kshs. 2,000/-), search certificate (Kshs. 1,500/-), and police abstract (Kshs. 200/-).
54. Upon scrutiny of the record, however, the only receipts produced were Kshs. 550/- for the motor vehicle search and Kshs. 1,550/- for medical expenses. These total Kshs. 2,100/-.
55. Consequently, the award of Kshs. 5,700/- by the trial court cannot stand. It is hereby set aside and substituted with an award of Kshs. 2,100/-
56. In light of the foregoing analysis, this appeal succeeds only to the extent that:
i. The the trial Court finding on liability, costs of the lower Court case and interest, remain undisturbed.
ii. The amount of Kshs 350,000/- awarded to the respondent in general damages is set aside and substituted with an award of Kshs 180,000/-.
iii. The amount of Kshs 5,700/- awarded to the respondent in special damages is set aside and substituted with an award of Kshs 2,100/-.
iv. Since the appeal has partly succeeded, each party shall bear its own costs for this appeal.
Delivered, Dated and Signed this 23rd day of April 2026
1. The appeal before me arises from Machakos CMCC No. E196 of 2022 in which judgment was entered against the appellant holding it 100% liable. The trial court awarded General damages for Kshs. 350,000/- and Special damages at Kshs. 5,700/-.
2. The genesis of this suit can be traced to a plaint dated 6th June 2022 where the respondent sued the appellant seeking special damages in the sum of Kshs 5700/-, general damages for pain, suffering and loss of amenities, costs of the suit, interest at court rates, and any other relief the court deemed fit and just to grant.
3. In the plaint, the respondent averred that on or about the 15th of March 2022, while lawfully traveling in motor vehicle Registration No. KCB 450R, Scania Bus along the Kitui-Machakos road near Kithangathini Area, the appellant’s driver, servant and or agent, negligently drove, controlled and/or managed the said motor vehicle that he permitted it to hit a road bump at a high speed. As a result, the respondent was thrown against the bus carrier, and sustained severe injuries and suffered loss and damage.
4. The appellant in a defense dated 17th June 2022 denied the respondent’s claim in its entirety, put the respondent to strict proof, and pleaded in the alternative that if the accident did occur, it was solely caused by the respondent.
5. Upon hearing both parties, the trial court in its judgment dated 21st December 2023, held that the appellant was 100% liable for the accident. Consequently, the trial court awarded Kshs 350,000 in general damages for pain and suffering with interest at court rates from the date of judgment till payment in full, Kshs 5,700 as special damages from the date of filing the suit till payment in full, and costs of the suit, with interest at court rates, from the date of the judgment till payment in full.
6. Aggrieved by the decision, the appellant filed this appeal raising eleven (11) grounds reproduced verbatim as follows. That-:
(1) The learned trial magistrate erred in law and in fact in finding the appellant 100% liable.
(2) The learned trial magistrate erred in law and in fact in finding that failure by the appellant to avail a witness automatically proves that the respondent's claim is undisputed.
(3) The learned trial magistrate erred in law and in fact in failing to find that the respondent had the burden to prove negligence/liability on the part of the appellant and the injuries sustained on the required standard of proof.
(4) The learned trial magistrate erred in law and in fact in finding that the respondent sustained injuries alleged when no initial treatment notes had been availed as proof of the same.
(5) The learned trial magistrate erred in law and in fact in failing to take into account the fact that out of 26 passengers in the vehicle the respondent was travelling in, only the respondent was involved in an accident and sustained injuries.
(6) The learned trial magistrate erred in law and in fact in finding that the respondent sustained injuries stated in the Plaint when the alleged injuries were not backed by any evidence.
(7) The learned trial magistrate erred in law and in fact in failing to find that the respondent's injuries and entire claim is fabricated
(8) The learned trial magistrate erred in law and in fact in failing to take into account authorities cited by the appellant in relation to proof of injuries and negligence.
(9) The learned trial magistrate erred in law and in fact assessing the damages payable for general damages at an inordinate high.
(10) The learned trial magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the appellants.
(11) In all the circumstances of the case, the learned trial magistrate failed to do justice.
7. Consequently, the appellants pray that the appeal be allowed, the judgment of the trial court be set aside and substituted with a proper award. They also seek costs of this appeal and of the suit in the Magistrate’s, court together with any other relief this Honourable Court may deem fit to grant.
8. The appeal was canvassed by way of written submissions. The appellant filed written submissions as summarised below.
9. The appellant submits that the respondent’s claim is fabricated, as the injuries alleged are not consistent with the circumstances of the accident as alleged by the respondent.
10. It is the appellant’s case that the key question is whether negligence was proved against the driver and whether the respondent’s treatment notes establish that he sustained injuries in the accident. The appellant emphasizes that no other passenger among the 26 on board complained of injury, which casts doubt on the respondent’s account.
11. the appellant argues that the mere absences of its witness does not automatically render the respondent’s evidence uncontroverted. Reliance is placed on the Court of Appeal’s decisions in Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & another [2014] eKLR and Charterhouse Bank Limited (under statutory management vs. Frank N. Kamau (2016) eKLR to buttress this submission.
12. It is further urged that no negligence was proved against the appellants and the decisions in Treadsetter Tyres Ltd vs John Wekesa Wepukhulu (2010) eKLR, East Produce Kenya Limited -v- Christopher Astiado Osiro in Civil Appeal no. 43/01 and Nairobi HCCA No.152 of 2003, Statpack Industries Limited vs James Mbithi quoted in Nakuru HCCA N0. 320 Of 2004 Timsales LTD vs Willy Nganga Wanjohi are relied on to urge its case.
13. On the award for pain and suffering, the appellant submits that the respondent failed to produce the initial treatment notes following the alleged accident of 15th March 2022. It is argued that the injuries pleaded vary across the Plaint, the Medical Report by Dr. John Mutunga and the Medical Report from Neema Hospital. The appellant relies on Fadna Issa Omar v Malne Sirengo Chipo & 3 others [2016] EKLR and Timsales Limited v Wilson Libuywa Nakuru HCCA N0. 135 of 2006 to bolster this submission
14. The appellant contends that the only injury suffered by the respondent if any, was blunt injury to the left eye. It submits that, subject to apportionment of liability, an award of Kshs. 30,000/- would adequately compensate the respondent as general damages considering comparable awards issued by the courts.
15. On special damages, the appellant argues that the trial court erred in awarding Kshs 5,700/- as only Kshs. 2,000/- (medical report) and Kshs. 550/- (motor vehicle search) were proved.
16. The appellant concludes by urging this court to dismiss this appeal with costs.
Respondent’s submissions
17. The respondent submits that his evidence stood unchallenged, as the appellant failed to call any witnesses. He relies on the case of Alex Kipchirchir Rono v Lomsons enterprises (Civil Case 5 of 2019) to buttress this submission.
18. It is argued that the appellant’s driver owed the respondent a duty of care and ought not to have exposed him to imminent risk. Reliance is placed on the decision in Mary Njeri Murugi vs Peter Macharia & Another HCCC NO.318 of 2012 Nairobi.
19. The respondent maintains that the damages awarded by the trial court were a fair and just compensation for the injuries sustained.
Analysis and determination
20. I have carefully considered the grounds of appeal, examined the record and supplementary record of appeal, and reviewed the submissions of both parties. This appeal challenged both the finding of liability apportioned at 1oo% against the appellant and the quantum of damages awarded by the trial court.
21. Accordingly, the issues for determination are (i) whether the trial court erred in apportioning liability wholly against the appellant and (ii) whether the awards of pain and suffering, and special damages granted were erroneous or unjustified and/or excessive in the circumstances.
22. This being a first appeal, the duty of this Court is well settled. As stated in Selle v. Associated Motor Boat Co. Ltd [1968] EA, a first appellate court must reconsider the evidence, evaluate it afresh, and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses firsthand.
Whether the trial court erred in apportioning liability wholly against the appellant
23. Turning to liability, the question is whether the trial court erred in holding the appellant 100% liable for the accident.
24. The appellant contends that the respondent’s claim was fabricated, that negligence was not proved, and that the absences of its witnesses did not respondent’s case uncontroverted. Conversely, the respondent maintains that he proved his case through medical evidence and the testimony of a police officer which remained unchallenged.
25. The legal burden of proof is set out under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya which provides that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
26. The evidential burden is further captured under Sections 109 and 112 of the Evidence Act, which place the burden of proving particular facts on the party asserting them, and where facts are especially within the knowledge of a party, the burden lies on that party. It provides as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
27. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR emphasized that in negligence claims, the burden is always on the plaintiff to prove that the accident was caused by the defendant’s negligence. However, once a prima facie inference of negligence is established, the burden shifts to the defendant to displace it with adequate evidence.In the present case, the record contains a Medical Report dated 5th April 2024 confirming that the respondent reported involvement in a road traffic accident on 15th March 2022 at 1509hrs .
28. Additionally, medical reports from Neema Hospital dated 15th March 2022 as well as a Medical Report by Machakos Level 5 Hospital signed by Doctor John Mutunga, confirm injuries sustained as a result of a road accident which occurred on 15th March 2022. The injuries include blunt injury left eye, cut wound left eye lower eye lid, blunt injury to nasal bridge and cut wound nasal bridge.
29. A police abstract dated 5th May 2022 corroborates the occurrence of the accident, on 15th March 2022, and the sworn testimony of PC Dennis Oloo attached at traffic Mwala Subbase, who attended the scene, further supports the respondent’s account.
30. Although the appellant contends that the respondent’s claim was fabricated, or that he contributed to the accident, no evidence was adduced to support these assertions. I am therefore unconvinced that the appellant tendered any credible evidence capable of displacing liability from itself to the respondent.
31. In so finding, I am guided by the Court of Appeal decision in Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR) where it observed:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…
“The question must be determined by applying common sense to the facts of each particular case.”
32. Similarly, in Mumbi M'Nabea v David M.Wachira [2016] KECA 773 (KLR), the Court of Appeal emphasized that the standard of proof in civil liability claims is on a balance of probabilities, requiring the court to assess the evidence and determine which version of events is more probable.
33. In the present case, the medical reports on record, the Police Abstract, and the sworn testimony of PC Oloo who visited the accident scene, collectively establish that the respondent sustained injuries in the accident. With no rebuttal evidence from the appellant, I am satisfied that the respondent proved his case on a balance of probabilities.
34. I therefore find the holding of the trial court on liability at 100% as proper. I see no justifiable reason to disturb that determination, the same is hereby upheld.
Whether the awards of pain and suffering, and special damages granted were erroneous or unjustified and/or excessive in the circumstances
35. On general damages for pain and suffering, the trial court awarded the Kshs 350,000. The appellant challenges this award as excessive, while the respondent maintains that it was fair compensation for the injuries sustained.
36. The principles governing appellate interference with awards of damages are well settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR the Court of Appeal held that:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
37. Likewise, in Butt v. Khan, Civil Appeal No. 40 of 1997 it was held:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrive at a figure which was either inordinately high or low.”
38. Further, the Court of Appeal in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 71 (KLR) observed and gave the following guidelines:
“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.
1. Each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
3. comparable injuries should attract comparable awards.
4. inflation should be taken into account; and
5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.”
39. It is also prudent to point out that Halsbury's Laws of England, 4th Edition, Volume 12(1), page 348 at paragraph 883, states:
"883. Pain and suffering. Damages are awarded for the physical and mental distress caused to the Plaintiff, both pre-trial and in the future as a result of the injury. This includes the pain caused by the injury itself, and the treatment intended to alleviate it, the awareness of and embarrassment at the disability or disfigurement, or suffering caused by anxiety that the Plaintiffs' condition may deteriorate."
40. What therefore emerges is that the principles on which an appellate court will disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court considered irrelevant factors in assessing the damages. As such, the question that arises is whether the trial court’s award of Kshs 350,000/- was excessive and unjustified.
41. The medical report evidence shows that the respondent sustained soft tissue injuries to the eye and nasal bridge, with no disability.
42. The respondent relied on Martin Mugi -vs- Attorney General HCCC NO. 791 of 1999 and Catherine Wanjiru King'ori & 3 Others vs Gibson Theuri Gichubi (2005) eKLR where awards of Kshs. 300,000/- were granted for pain and suffering. In Martin Mugi -vs- Attorney General case (supra), one of the injuries involved a deep extensive cut to the face requiring cosmetic surgery estimated at Kshs 100,000/- to reconstruct the facial scar. In my considered view, this case is not comparable with the present matter, where the injuries were soft tissue in nature and did not result in permanent disability. Similarly, in Catherine Wanjiru King'ori case (supra), four plaintiffs sustained varied injuries and were awarded different sums ranging from Kshs 100,000/-, to, Kshs 350,000/-. Again, the factual matrix of that case is not directly comparable to the instant case.
43. On perusal of authorities involving similar or comparable injuries, I note that awards for multiple soft tissue injuries generally range at between Kshs 100,000/- and Kshs 200,000/- depending on the severity of the injuries.
44. For instance, in Channan Agricultural Contractors Ltd v Fred Barasa Mutayi [2013] KEHC 1478 (KLR), Chitembwe J, on 30th October 2013, reviewed downwards an award of Kshs. 250,000 to Kshs. 150,000 for moderate soft tissue injuries. In George Kinyanjui T/A Climax Coaches & another v Hussein Mahad Kuyale [2016] KEHC 7251 (KLR), Kimondo J on 19th January 2016, reviewed downwards an award of Kshs. 650,000/- to Kshs. 109,890/- for soft tissue injuries.
45. Other comparable cases include JFM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, R. Nyakundi J on 10th December 2020 increased an award of Kshs 60,000/- to Kshs 100,000/-.
46. In Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR, R. Nyakundi J on 15th April 2020, reduced an award of Kshs 350,000/- to Kshs 140,000/-.
47. In Francis Omari Ogaro v JAO (minor suing through next friend and father GOD [2021] eKLR, E. Maina J on 28th October 2021 reduced an award of Kshs 230,000/- to Kshs 180,000/-.
48. In Ogola v Kihiu [2023] KEHC 17705 (KLR), Anuro J, on 26th May 2023, reduced an award of Kshs 3o0,000/- to Kshs 180,000/- for multiple soft tissue injuries.
49. Taking into account these authorities, the prevailing economic conditions and the need to ensure fair I find the award of Kshs. 350,000/- by the trial court to be substantially excessive to justify interference by this court.
50. Accordingly, I set aside the award of Kshs 350,000/- awarded in general damages and substitute it with an award of Kshs 150,000/-.
51. On special damages, the trial court awarded Kshs 5700/- which the appellant faults for being erroneous while the respondent maintains that it was properly granted.
52. It is now firmly established that special damages must not only be specifically pleaded but also strictly proved, before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
53. In this case, the respondent pleaded Kshs. 5,700/- as special damages, comprising medical and related expenses (Kshs. 2,000/-), medical report (Kshs. 2,000/-), search certificate (Kshs. 1,500/-), and police abstract (Kshs. 200/-).
54. Upon scrutiny of the record, however, the only receipts produced were Kshs. 550/- for the motor vehicle search and Kshs. 1,550/- for medical expenses. These total Kshs. 2,100/-.
55. Consequently, the award of Kshs. 5,700/- by the trial court cannot stand. It is hereby set aside and substituted with an award of Kshs. 2,100/-
56. In light of the foregoing analysis, this appeal succeeds only to the extent that:
i. The the trial Court finding on liability, costs of the lower Court case and interest, remain undisturbed.
ii. The amount of Kshs 350,000/- awarded to the respondent in general damages is set aside and substituted with an award of Kshs 180,000/-.
iii. The amount of Kshs 5,700/- awarded to the respondent in special damages is set aside and substituted with an award of Kshs 2,100/-.
iv. Since the appeal has partly succeeded, each party shall bear its own costs for this appeal.
Delivered, Dated and Signed this 23rd day of April 2026