(Being an appeal against the Judgment of Hon. Wendy Micheni, Chief Magistrate, delivered on the 31st October 2023 in Milimani CMCC No. E5980 of 2022)
1. This appeal arises from the Judgment of the Chief Magistrate’s Court at Milimani by Hon. Wendy Micheni, Chief Magistrate (as she then was), delivered on the 31st day of October 2023 in Milimani CMCC No. E5980 of 2022. The suit before the trial court was instituted by James Kariuki Muna (hereinafter “the 1st Respondent”) as Plaintiff against Medio Care Pharmaceutical Limited (hereinafter “the Appellant”) as 1st Defendant, and Collins Ombinje as 2nd Defendant, arising out of a road traffic accident that allegedly occurred on 4th July 2022 along the Southern Bypass, Nairobi.
2. The 1st Respondent averred that he was lawfully driving motor vehicle registration number KCT 508Q when motor vehicle registration number KDC 387G, registered in the name of the Appellant and driven by the 2nd Respondent, was so recklessly and carelessly driven that it caused a road traffic accident in which the 1st Respondent sustained serious bodily injuries.
3. The 1st Respondent, together with a police officer, testified before the trial court and tendered documentary evidence including a Police Abstract dated 19th September 2022 which blamed the 2nd Respondent for causing the accident. This stood in contrast to the Police Abstract produced by the Appellant, dated 5th July 2022 , the day after the accident , which indicated that the matter was then pending investigation.
4. The 2nd Respondent, who was the driver of motor vehicle KDC 387G, testified during the trial and stated that, on the material day, he had been driving along the Southern Bypass when, on approaching the Ngong Road interchange, he encountered motor vehicle KCT 508Q, which had been parked, or had stalled, in the middle of the road. According to him, the said vehicle bore no warning signs for other road users.
5. The learned trial Magistrate, after evaluating the evidence, found the Appellant 80% liable for the accident and awarded the 1st Respondent a total of Kshs. 10,634,516/=, together with interest and costs.
6. Being aggrieved by the said Judgment, the Appellant filed the present appeal vide a Memorandum of Appeal dated 28th January 2024, raising five (5) grounds of appeal principally alleging:
(i) that the learned Magistrate failed to appreciate that the burden of proof lay squarely on the 1st Respondent;
(ii) that the learned Magistrate misdirected herself in apportioning 80% liability against the Appellant, the accident being in the nature of an inevitable occurrence;
(iii) that the learned Magistrate erred in relying on unproven evidence to grant the reliefs sought;
(iv) that the learned Magistrate erred in granting reliefs and damages that had not been pleaded; and
(v) that the learned Magistrate misdirected herself in the assessment of general damages.
7. The 1st Respondent filed a Cross-Appeal dated 6th February 2024.
8. The appeal and the cross-appeal were to be prosecuted by way of written submissions, as directed by Lady Justice Stella Mutuku on 21st January 2025.
9. The Appellant failed to file its submissions, while the 1st Respondent’s submissions were dated 4th May 2025.
APPELLANT’S SUBMISSIONS
10. The Appellant failed to file written submissions. Indeed, the Appellant did not appear in court on any of the several dates on which the matter was listed for mention, namely 6th March, 29th April, 19th May, 10th June, 20th August, 25th September, 4th November and 4th December 2025, and 5th February 2026.
11. Ordinarily, such conduct would be deemed an abandonment of the appeal, and a Notice to Show Cause why the appeal should not be dismissed would have been issued .
12. There is, however, a Memorandum of Appeal on file which sets out, to some extent, the Appellant’s position on the grounds of appeal, together with the Record of Appeal that formed part of the trial court proceedings. These include the written submissions filed before the trial court, which this appellate court has considered. In the interest of determining the appeal on its merits, this Court has had regard to that material.
13. The Appellant urged the trial court to bear in mind the principle that he who alleges must prove.
14. The Appellant further contended that the police officer who testified was neither the investigating officer nor an eyewitness to the accident, and that his testimony therefore amounts to inadmissible hearsay with no probative value.
15. On quantum, the Appellant contended that an award of Kshs. 800,000/= in general damages would have been adequate; that the claim for loss of earnings did not warrant any award; and that the claim for diminished earning capacity ought to have been dismissed.
1ST RESPONDENT’S SUBMISSIONS
16. The 1st Respondent submits that he proved his case on a balance of probabilities, and that the learned trial Magistrate ought to have apportioned liability wholly against the Appellant rather than at 80:20. He contends that liability ought to have been borne 100% by the Appellant.
17. On quantum, the 1st Respondent contends that the sums awarded in the Judgment were lower than he had expected.
18. He prays that the appeal be dismissed with costs, and that the cross-appeal be allowed as prayed.
ISSUES FOR DETERMINATION
19. From the pleadings, the Record of Appeal, and the written submissions of the parties, this Court identifies the following two issues for determination:
(a) Whether the learned trial Magistrate erred in apportioning 80% liability against the Appellant; and
(b) Whether the award of damages in the sum of Kshs. 10,634,516/= was too low or too high and warrants interference by this appellate Court.
ANALYSIS AND DETERMINATION
20. At the outset, it is useful to restate the well-established principles governing the jurisdiction of this Court on a first appeal from the subordinate court. This Court is empowered by Section 78 of the Civil Procedure Act (Cap. 21) and Order 42 Rule 25 of the Civil Procedure Rules, 2010. As the first appellate court, it has a duty to re-evaluate the entire evidence on record and to arrive at its own independent conclusions, while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
21. The principle was settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court of Appeal for East Africa held that a first appellate court should reconsider the evidence, evaluate it itself, and draw its own conclusions, while always bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. This Court will apply that standard in the analysis that follows.
22. The foundational principle of tort liability in Kenya was authoritatively stated by the Court of Appeal in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 , where it was affirmed that there is no liability without fault, and that a plaintiff must prove some negligence against the defendant where the claim is founded on negligence. The evidential basis for such proof is governed by Sections 107, 108 and 109 of the Evidence Act (Cap. 80), which place the burden of proof on the party who asserts the existence of the facts upon which a right or liability depends.
23. In civil proceedings, the standard of proof is on a balance of probabilities, which requires the tribunal to be satisfied that the occurrence of the alleged event was more likely than not. As Lord Denning stated in Miller v Minister of Pensions [1947] 2 All ER 372 , the evidence must carry a reasonable degree of probability; if the tribunal can say that it is more probable than not, the burden is discharged. Lord Denning expressed it thus:
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
24. The first substantive challenge raised by the Appellant is that the evidence adduced by the 1st Respondent was insufficient to sustain the apportionment of 80% liability against it. The Appellant attacks, in particular, the reliance placed on the Police Abstract and the testimony of PW2.
25. On the value of a Police Abstract, this Court is guided by a well-settled line of authority. It is accepted that the contents of a Police Abstract, as extracted from the records held by the police, are merely evidence that a report of an accident was made. The abstract is prima facie evidence of the occurrence of the accident and of the particulars of those involved, but it is rebuttable and is not conclusive proof of liability. In Kennedy Nyangoya v Bash Hauliers [2016] eKLR , the court held that even where a Police Abstract indicates that a party was to blame, the abstract is not conclusive proof of liability in the absence of further corroborating evidence. These propositions represent trite law and are not in dispute.
26. The critical question, however, is not whether the Police Abstract alone suffices to establish liability, but whether, when considered alongside the totality of the evidence adduced, the 1st Respondent discharged his burden of proof on a balance of probabilities. This Court is of the view that the Appellant’s focus on the Police Abstract, while legally accurate in isolation, ignores the broader evidentiary matrix that was before the trial court.
27. A feature of this case which distinguishes it from the ordinary is that two Police Abstracts were placed before the trial court. The first, produced by the Appellant and dated 5th July 2022 , a day after the accident , recorded the matter as pending investigation. The second, produced by the 1st Respondent and dated 19th September 2022, attributed blame to the 2nd Respondent. A later abstract, issued after the police had had the opportunity to record statements and consider the circumstances, will ordinarily carry greater evidential weight than a preliminary entry made before any investigation has taken place. The trial Magistrate was accordingly entitled to prefer the later abstract, particularly when it was read together with the direct testimony of the 1st Respondent.
28. On the challenge to PW2’s testimony as hearsay, this Court acknowledges the general rule against hearsay embodied in Section 63 of the Evidence Act. It is correct that PW2 was not an eyewitness to the accident and testified primarily from the Police Abstract and the station records. To that extent, his evidence on the mechanics of how the accident occurred carries limited probative value in isolation. However, it must be recalled that PW2’s evidence was tendered to corroborate the fact that the accident was reported, to confirm the vehicle involved, and to produce the Police Abstract as a formal document. The 1st Respondent (PW1) himself provided direct eye-witness testimony, having been the driver of the vehicle that was struck.
29. The Appellant places particular emphasis on the fact that its own Police Abstract recorded the matter as pending investigation, and argues that no investigation was concluded so as to attribute blame to it. This Court takes note of the argument, but observes that the matter is being determined many years after the accident, and that the absence of a concluded police investigation does not, of itself, exonerate the Appellant. The civil court is required to arrive at its own independent finding on a balance of probabilities, distinct from any criminal or regulatory process.
30. It bears emphasis that the Appellant, having lodged this appeal, thereafter failed to file any submissions and did not attend court on any of the several occasions when the matter was listed. The burden of demonstrating that the trial court erred lies on the party who appeals. An appellant who neither files submissions nor appears to prosecute its appeal places nothing before the appellate court capable of displacing the findings of the trial court. The account advanced at trial that the 1st Respondent’s vehicle was stationary in the road without warning signs was a matter for the trial Magistrate to weigh against the 1st Respondent’s evidence, and she did so in apportioning 20% of the liability to the 1st Respondent.
31. The law governing appellate interference with a trial court’s apportionment of liability is well settled. In Khambi & Another v Mahithi & Another [1968] EA 70 , the Court of Appeal for East Africa held that, where a trial court has apportioned liability according to the fault of the parties, its apportionment should not be interfered with on appeal save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and that an appellate court should not consider itself free to substitute its own apportionment for that of the trial court. Notably, that case also concerned a vehicle that had been left standing on the carriageway , a circumstance not far removed from the facts now before this Court.
32. Applying that standard, this Court finds that the trial Magistrate’s apportionment of 80% liability against the Appellant, and 20% against the 1st Respondent, was well within the range reasonably open to a tribunal properly directing itself on the law and the facts. Neither the Appellant, which seeks to reduce its share, nor the 1st Respondent, who by his cross-appeal seeks to eliminate his 20% share, has demonstrated any error of principle or shown the apportionment to be manifestly erroneous. This Court sees no basis to disturb the finding on liability. The first issue is accordingly determined against both the appeal and the cross-appeal.
33. The second issue concerns the award of Kshs. 10,634,516/= in damages. The governing principles on appellate interference with such awards are well settled. As stated in Ephantus Mwangi & Another v Duncan Mwangi Wambugu (Civil Appeal No. 74 of 1982) [1982-88] 1 KAR 278 , an appellate court will not interfere with an award of damages unless the trial court applied wrong principles of law, or misapprehended the facts, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate of the damage.
34. The same principle was authoritatively expressed by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Service v A M Lubia & Another [1982-88] 1 KAR 727 , where it was held that an appellate court will be justified in disturbing an award only where it is satisfied that the trial court took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately high or low as to amount to a wholly erroneous estimate of the damage. The principle was restated in Peter Namu Njeru v Philemone Mwagoti (Civil Appeal 132 of 2012) [2016] eKLR , where it was observed that the assessment of damages is a discretionary matter vested in the trial court, requiring a clear and demonstrable error before an appellate court will interfere.
35. On the correct approach to assessment, it is trite that comparable injuries should, so far as possible, be compensated by comparable awards, while bearing in mind that no two cases are exactly alike. The assessment must reflect the nature and gravity of the injuries actually sustained. The law, in assessing compensatory damages, seeks at most to indemnify the victim for the loss suffered, and not to penalise the tortfeasor.
36. According to the medical evidence on record, the 1st Respondent sustained a T3 burst fracture, paraplegia, T4 body fracture and had incontinence of urine and faeces.
37. The expert report of Dr. Cyprianus Okoth Okere, produced on behalf of the Respondent, also forms part of the record. The doctor stated in his Report dated 9th November 2022 that the injuries can be classified as grevious harm. The degree of permanent incapacity was 100%. The 1st Respondent also needed nursing care throughout his life.
38. The sum of Kshs. 10,634,516/= was awarded by the trial court and was well broken down under various headings that were per the prayers by the 1st Respondent. They were not confined to general damages for pain, suffering and loss of amenities. It is apparent from the pleaded claim and from the submissions that the award comprised, in addition, the heads of special damages and the claim relating to loss of earnings and earning capacity.
The same subject to the 20% liability contribution was broken down as follows:
(a) General damages Kshs. 10,000,000
(b) Special damages Kshs. 243,145
(c) Wheel Chair Kshs. 250,000
(d) Medical coists for urine bags Kshs. 1,000,000
(e) Bed Kshs. 200,000
(f) Special Mattress Kshs. 100,000
(g) Loss of past, present, future earnings Kshs. 1,000,000
(h) House help Kshs. 500,000
39. On appeal, the burden lay on the Appellant to demonstrate that the trial court, in arriving at that figure, had either applied wrong principles, taken into account irrelevant matters, or reached a wholly erroneous estimate. Having filed no submissions and having failed to prosecute its appeal, the Appellant has placed no material before this Court capable of establishing any such error.
40. Equally, the 1st Respondent’s cross-appeal, which complains only that the figure was lower than he had expected, falls well short of demonstrating that the awards under specific headings were so inordinately low as to be a wholly erroneous estimate. Indeed, in the wqritten submiissions by the 1st Respondent the heading on loss of past, present and future earnings is noted not to have had any documentary evidence.
41. In these circumstances, and applying the principles in Ephantus Mwangi and Kemfro (supra) , this Court finds no basis upon which it would be justified in interfering with the trial court’s assessment , whether by reducing it at the instance of the Appellant, or by increasing it at the instance of the 1st Respondent. The award is accordingly retained. The second issue is also determined against both the appeal and the cross-appeal.
DISPOSITION
42. In conclusion, having re-evaluated the entirety of the evidence and considered the material on record, this Court finds that both the appeal and the cross-appeal lack merit, and the following orders are made:
(a) The appeal and the cross-appeal against the apportionment of liability at 80:20 are both dismissed, and the apportionment made by the trial court is upheld.
(b) The award of damages is retained at Kshs. 10,634,516/=.
(c) Given that both the appeal and the cross-appeal have been dismissed, each party shall bear its own costs of the appeal and the cross-appeal.
Dated and Delivered at Nairobi this 11th day of June 2026.
BENARD WAFULA MURUNGA
JUDGE
Delivered on the virtual platform, in the presence of:
N/A for the Appellant
Kulecho instructed by Kulecho & Co. for the Respondent
Kevin Babu - Court Assistant
1. This appeal arises from the Judgment of the Chief Magistrate’s Court at Milimani by Hon. Wendy Micheni, Chief Magistrate (as she then was), delivered on the 31st day of October 2023 in Milimani CMCC No. E5980 of 2022. The suit before the trial court was instituted by James Kariuki Muna (hereinafter “the 1st Respondent”) as Plaintiff against Medio Care Pharmaceutical Limited (hereinafter “the Appellant”) as 1st Defendant, and Collins Ombinje as 2nd Defendant, arising out of a road traffic accident that allegedly occurred on 4th July 2022 along the Southern Bypass, Nairobi.
2. The 1st Respondent averred that he was lawfully driving motor vehicle registration number KCT 508Q when motor vehicle registration number KDC 387G, registered in the name of the Appellant and driven by the 2nd Respondent, was so recklessly and carelessly driven that it caused a road traffic accident in which the 1st Respondent sustained serious bodily injuries.
3. The 1st Respondent, together with a police officer, testified before the trial court and tendered documentary evidence including a Police Abstract dated 19th September 2022 which blamed the 2nd Respondent for causing the accident. This stood in contrast to the Police Abstract produced by the Appellant, dated 5th July 2022 , the day after the accident , which indicated that the matter was then pending investigation.
4. The 2nd Respondent, who was the driver of motor vehicle KDC 387G, testified during the trial and stated that, on the material day, he had been driving along the Southern Bypass when, on approaching the Ngong Road interchange, he encountered motor vehicle KCT 508Q, which had been parked, or had stalled, in the middle of the road. According to him, the said vehicle bore no warning signs for other road users.
5. The learned trial Magistrate, after evaluating the evidence, found the Appellant 80% liable for the accident and awarded the 1st Respondent a total of Kshs. 10,634,516/=, together with interest and costs.
6. Being aggrieved by the said Judgment, the Appellant filed the present appeal vide a Memorandum of Appeal dated 28th January 2024, raising five (5) grounds of appeal principally alleging:
(i) that the learned Magistrate failed to appreciate that the burden of proof lay squarely on the 1st Respondent;
(ii) that the learned Magistrate misdirected herself in apportioning 80% liability against the Appellant, the accident being in the nature of an inevitable occurrence;
(iii) that the learned Magistrate erred in relying on unproven evidence to grant the reliefs sought;
(iv) that the learned Magistrate erred in granting reliefs and damages that had not been pleaded; and
(v) that the learned Magistrate misdirected herself in the assessment of general damages.
7. The 1st Respondent filed a Cross-Appeal dated 6th February 2024.
8. The appeal and the cross-appeal were to be prosecuted by way of written submissions, as directed by Lady Justice Stella Mutuku on 21st January 2025.
9. The Appellant failed to file its submissions, while the 1st Respondent’s submissions were dated 4th May 2025.
APPELLANT’S SUBMISSIONS
10. The Appellant failed to file written submissions. Indeed, the Appellant did not appear in court on any of the several dates on which the matter was listed for mention, namely 6th March, 29th April, 19th May, 10th June, 20th August, 25th September, 4th November and 4th December 2025, and 5th February 2026.
11. Ordinarily, such conduct would be deemed an abandonment of the appeal, and a Notice to Show Cause why the appeal should not be dismissed would have been issued .
12. There is, however, a Memorandum of Appeal on file which sets out, to some extent, the Appellant’s position on the grounds of appeal, together with the Record of Appeal that formed part of the trial court proceedings. These include the written submissions filed before the trial court, which this appellate court has considered. In the interest of determining the appeal on its merits, this Court has had regard to that material.
13. The Appellant urged the trial court to bear in mind the principle that he who alleges must prove.
14. The Appellant further contended that the police officer who testified was neither the investigating officer nor an eyewitness to the accident, and that his testimony therefore amounts to inadmissible hearsay with no probative value.
15. On quantum, the Appellant contended that an award of Kshs. 800,000/= in general damages would have been adequate; that the claim for loss of earnings did not warrant any award; and that the claim for diminished earning capacity ought to have been dismissed.
1ST RESPONDENT’S SUBMISSIONS
16. The 1st Respondent submits that he proved his case on a balance of probabilities, and that the learned trial Magistrate ought to have apportioned liability wholly against the Appellant rather than at 80:20. He contends that liability ought to have been borne 100% by the Appellant.
17. On quantum, the 1st Respondent contends that the sums awarded in the Judgment were lower than he had expected.
18. He prays that the appeal be dismissed with costs, and that the cross-appeal be allowed as prayed.
ISSUES FOR DETERMINATION
19. From the pleadings, the Record of Appeal, and the written submissions of the parties, this Court identifies the following two issues for determination:
(a) Whether the learned trial Magistrate erred in apportioning 80% liability against the Appellant; and
(b) Whether the award of damages in the sum of Kshs. 10,634,516/= was too low or too high and warrants interference by this appellate Court.
ANALYSIS AND DETERMINATION
20. At the outset, it is useful to restate the well-established principles governing the jurisdiction of this Court on a first appeal from the subordinate court. This Court is empowered by Section 78 of the Civil Procedure Act (Cap. 21) and Order 42 Rule 25 of the Civil Procedure Rules, 2010. As the first appellate court, it has a duty to re-evaluate the entire evidence on record and to arrive at its own independent conclusions, while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
21. The principle was settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court of Appeal for East Africa held that a first appellate court should reconsider the evidence, evaluate it itself, and draw its own conclusions, while always bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. This Court will apply that standard in the analysis that follows.
22. The foundational principle of tort liability in Kenya was authoritatively stated by the Court of Appeal in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 , where it was affirmed that there is no liability without fault, and that a plaintiff must prove some negligence against the defendant where the claim is founded on negligence. The evidential basis for such proof is governed by Sections 107, 108 and 109 of the Evidence Act (Cap. 80), which place the burden of proof on the party who asserts the existence of the facts upon which a right or liability depends.
23. In civil proceedings, the standard of proof is on a balance of probabilities, which requires the tribunal to be satisfied that the occurrence of the alleged event was more likely than not. As Lord Denning stated in Miller v Minister of Pensions [1947] 2 All ER 372 , the evidence must carry a reasonable degree of probability; if the tribunal can say that it is more probable than not, the burden is discharged. Lord Denning expressed it thus:
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
24. The first substantive challenge raised by the Appellant is that the evidence adduced by the 1st Respondent was insufficient to sustain the apportionment of 80% liability against it. The Appellant attacks, in particular, the reliance placed on the Police Abstract and the testimony of PW2.
25. On the value of a Police Abstract, this Court is guided by a well-settled line of authority. It is accepted that the contents of a Police Abstract, as extracted from the records held by the police, are merely evidence that a report of an accident was made. The abstract is prima facie evidence of the occurrence of the accident and of the particulars of those involved, but it is rebuttable and is not conclusive proof of liability. In Kennedy Nyangoya v Bash Hauliers [2016] eKLR , the court held that even where a Police Abstract indicates that a party was to blame, the abstract is not conclusive proof of liability in the absence of further corroborating evidence. These propositions represent trite law and are not in dispute.
26. The critical question, however, is not whether the Police Abstract alone suffices to establish liability, but whether, when considered alongside the totality of the evidence adduced, the 1st Respondent discharged his burden of proof on a balance of probabilities. This Court is of the view that the Appellant’s focus on the Police Abstract, while legally accurate in isolation, ignores the broader evidentiary matrix that was before the trial court.
27. A feature of this case which distinguishes it from the ordinary is that two Police Abstracts were placed before the trial court. The first, produced by the Appellant and dated 5th July 2022 , a day after the accident , recorded the matter as pending investigation. The second, produced by the 1st Respondent and dated 19th September 2022, attributed blame to the 2nd Respondent. A later abstract, issued after the police had had the opportunity to record statements and consider the circumstances, will ordinarily carry greater evidential weight than a preliminary entry made before any investigation has taken place. The trial Magistrate was accordingly entitled to prefer the later abstract, particularly when it was read together with the direct testimony of the 1st Respondent.
28. On the challenge to PW2’s testimony as hearsay, this Court acknowledges the general rule against hearsay embodied in Section 63 of the Evidence Act. It is correct that PW2 was not an eyewitness to the accident and testified primarily from the Police Abstract and the station records. To that extent, his evidence on the mechanics of how the accident occurred carries limited probative value in isolation. However, it must be recalled that PW2’s evidence was tendered to corroborate the fact that the accident was reported, to confirm the vehicle involved, and to produce the Police Abstract as a formal document. The 1st Respondent (PW1) himself provided direct eye-witness testimony, having been the driver of the vehicle that was struck.
29. The Appellant places particular emphasis on the fact that its own Police Abstract recorded the matter as pending investigation, and argues that no investigation was concluded so as to attribute blame to it. This Court takes note of the argument, but observes that the matter is being determined many years after the accident, and that the absence of a concluded police investigation does not, of itself, exonerate the Appellant. The civil court is required to arrive at its own independent finding on a balance of probabilities, distinct from any criminal or regulatory process.
30. It bears emphasis that the Appellant, having lodged this appeal, thereafter failed to file any submissions and did not attend court on any of the several occasions when the matter was listed. The burden of demonstrating that the trial court erred lies on the party who appeals. An appellant who neither files submissions nor appears to prosecute its appeal places nothing before the appellate court capable of displacing the findings of the trial court. The account advanced at trial that the 1st Respondent’s vehicle was stationary in the road without warning signs was a matter for the trial Magistrate to weigh against the 1st Respondent’s evidence, and she did so in apportioning 20% of the liability to the 1st Respondent.
31. The law governing appellate interference with a trial court’s apportionment of liability is well settled. In Khambi & Another v Mahithi & Another [1968] EA 70 , the Court of Appeal for East Africa held that, where a trial court has apportioned liability according to the fault of the parties, its apportionment should not be interfered with on appeal save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and that an appellate court should not consider itself free to substitute its own apportionment for that of the trial court. Notably, that case also concerned a vehicle that had been left standing on the carriageway , a circumstance not far removed from the facts now before this Court.
32. Applying that standard, this Court finds that the trial Magistrate’s apportionment of 80% liability against the Appellant, and 20% against the 1st Respondent, was well within the range reasonably open to a tribunal properly directing itself on the law and the facts. Neither the Appellant, which seeks to reduce its share, nor the 1st Respondent, who by his cross-appeal seeks to eliminate his 20% share, has demonstrated any error of principle or shown the apportionment to be manifestly erroneous. This Court sees no basis to disturb the finding on liability. The first issue is accordingly determined against both the appeal and the cross-appeal.
33. The second issue concerns the award of Kshs. 10,634,516/= in damages. The governing principles on appellate interference with such awards are well settled. As stated in Ephantus Mwangi & Another v Duncan Mwangi Wambugu (Civil Appeal No. 74 of 1982) [1982-88] 1 KAR 278 , an appellate court will not interfere with an award of damages unless the trial court applied wrong principles of law, or misapprehended the facts, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate of the damage.
34. The same principle was authoritatively expressed by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Service v A M Lubia & Another [1982-88] 1 KAR 727 , where it was held that an appellate court will be justified in disturbing an award only where it is satisfied that the trial court took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately high or low as to amount to a wholly erroneous estimate of the damage. The principle was restated in Peter Namu Njeru v Philemone Mwagoti (Civil Appeal 132 of 2012) [2016] eKLR , where it was observed that the assessment of damages is a discretionary matter vested in the trial court, requiring a clear and demonstrable error before an appellate court will interfere.
35. On the correct approach to assessment, it is trite that comparable injuries should, so far as possible, be compensated by comparable awards, while bearing in mind that no two cases are exactly alike. The assessment must reflect the nature and gravity of the injuries actually sustained. The law, in assessing compensatory damages, seeks at most to indemnify the victim for the loss suffered, and not to penalise the tortfeasor.
36. According to the medical evidence on record, the 1st Respondent sustained a T3 burst fracture, paraplegia, T4 body fracture and had incontinence of urine and faeces.
37. The expert report of Dr. Cyprianus Okoth Okere, produced on behalf of the Respondent, also forms part of the record. The doctor stated in his Report dated 9th November 2022 that the injuries can be classified as grevious harm. The degree of permanent incapacity was 100%. The 1st Respondent also needed nursing care throughout his life.
38. The sum of Kshs. 10,634,516/= was awarded by the trial court and was well broken down under various headings that were per the prayers by the 1st Respondent. They were not confined to general damages for pain, suffering and loss of amenities. It is apparent from the pleaded claim and from the submissions that the award comprised, in addition, the heads of special damages and the claim relating to loss of earnings and earning capacity.
The same subject to the 20% liability contribution was broken down as follows:
(a) General damages Kshs. 10,000,000
(b) Special damages Kshs. 243,145
(c) Wheel Chair Kshs. 250,000
(d) Medical coists for urine bags Kshs. 1,000,000
(e) Bed Kshs. 200,000
(f) Special Mattress Kshs. 100,000
(g) Loss of past, present, future earnings Kshs. 1,000,000
(h) House help Kshs. 500,000
39. On appeal, the burden lay on the Appellant to demonstrate that the trial court, in arriving at that figure, had either applied wrong principles, taken into account irrelevant matters, or reached a wholly erroneous estimate. Having filed no submissions and having failed to prosecute its appeal, the Appellant has placed no material before this Court capable of establishing any such error.
40. Equally, the 1st Respondent’s cross-appeal, which complains only that the figure was lower than he had expected, falls well short of demonstrating that the awards under specific headings were so inordinately low as to be a wholly erroneous estimate. Indeed, in the wqritten submiissions by the 1st Respondent the heading on loss of past, present and future earnings is noted not to have had any documentary evidence.
41. In these circumstances, and applying the principles in Ephantus Mwangi and Kemfro (supra) , this Court finds no basis upon which it would be justified in interfering with the trial court’s assessment , whether by reducing it at the instance of the Appellant, or by increasing it at the instance of the 1st Respondent. The award is accordingly retained. The second issue is also determined against both the appeal and the cross-appeal.
DISPOSITION
42. In conclusion, having re-evaluated the entirety of the evidence and considered the material on record, this Court finds that both the appeal and the cross-appeal lack merit, and the following orders are made:
(a) The appeal and the cross-appeal against the apportionment of liability at 80:20 are both dismissed, and the apportionment made by the trial court is upheld.
(b) The award of damages is retained at Kshs. 10,634,516/=.
(c) Given that both the appeal and the cross-appeal have been dismissed, each party shall bear its own costs of the appeal and the cross-appeal.
Dated and Delivered at Nairobi this 11th day of June 2026.
BENARD WAFULA MURUNGA
JUDGE
Delivered on the virtual platform, in the presence of:
N/A for the Appellant
Kulecho instructed by Kulecho & Co. for the Respondent
Kevin Babu - Court Assistant