A. Background
1. The Appellant commenced Kangundo Civil Suit No. 201 of 2019 through the Plaint dated 19th September 2019. She pleaded that on 3rd September 2019 at about 12.00 noon, she was travelling as a fare-paying passenger in motor vehicle registration number KCH 154G along the Tala–Kangundo Road when, at Ngonda area, the driver lost control of the vehicle, causing it to veer off the road and land on its left side.
2. The Appellant attributed the accident to the negligence of the Respondent’s driver and pleaded that she suffered pain and tenderness in her lower back and right arm. She sought general damages for pain, suffering and loss of amenities, special damages of Kshs.4,550, costs and interest.
3. In the Defence dated 11th November 2019, the Respondent denied ownership of motor vehicle registration number KCH 154G, denied that the Appellant had been a passenger in the vehicle and denied the particulars of negligence pleaded against him. In the alternative, he attributed the accident to the Appellant’s negligence.
4. The Appellant testified before the trial court on 22nd November 2022. She stated that she was travelling aboard motor vehicle registration number KCH 154G when it lost control and veered off the road. She sustained injuries to her back and right arm and was treated at Kangundo Level 4 Hospital. She relied on, among other documents, the treatment notes dated 3rd September 2019, the police abstract dated 12th September 2019, the medical report dated 13th September 2019 and the copy of records dated 10th September 2019.
5. A police officer who had attended the accident scene also testified for the Appellant on 16th April 2024. His evidence was that the vehicle had approximately 18 passengers, but only 11 were initially recorded in the Occurrence Book. He confirmed that the Appellant was a casualty in the accident and that the police abstract issued to her was genuine.
6. The Respondent called Sergeant Robert Biganda, who testified on 16th April 2024. His evidence was that the Appellant’s name did not appear in the Occurrence Book and that she could not, therefore, have been involved in the accident. He relied on the police records and the letter from Kangundo Traffic Base dated 5th July 2021, which purported to invalidate the P3 forms and police abstracts issued to several persons whose names were not recorded in the Occurrence Book.
7. By the judgment delivered on 30th July 2024, the learned trial magistrate found that the Appellant had not proved that she was a passenger in the vehicle because her name did not appear in the Occurrence Book. The court held that the Respondent consequently owed her no duty of care and dismissed her suit with costs.
B. Grounds of Appeal
8. Aggrieved by that decision, the Appellant lodged the present appeal. The grounds set out in the Memorandum of Appeal are reproduced verbatim as follows:
1. The Learned Magistrate erred in Law and in fact by dismissing the Appellant’s case due to her name not being found in the Police occurrence book.
2. The Learned Magistrate erred in Law and in fact by disregarding and failing to appreciate the whole evidence tabled by the Appellant.
3. The Learned Magistrate erred in Law and in fact by relying on the hearsay evidence of the defence witness Sergeant Robert Biganda who was not the investigating officer nor stationed at Kangundo Police Station at the time of the accident in question.
4. The Learned Magistrate erred in Law and in fact by not putting any consideration to the Plaintiff’s submissions or fully analyzing the Plaintiff’s Submissions before arriving at her Judgment.
5. The Learned Magistrate erred in Law and in fact by finding that the Appellant had not proved that she was involved in the accident.
6. The Learned Magistrate erred in Law and in fact by finding that the defendant did not owe the plaintiff a duty of care as she was not a passenger in the defendant’s motor vehicle.
7. The Learned Magistrate erred in Law and in fact by dismissing the Appellant’s suit with costs.
9. The Appellant asked this Court to set aside the judgment dated 30th July 2024, find the Respondent liable and award general and special damages together with the costs of the proceedings before the subordinate court and of this appeal.
C. Submissions
10. In her written submissions, the Appellant contended that the trial court placed undue reliance on the omission of her name from the Occurrence Book and failed to consider the totality of the evidence. She argued that the police officer who attended the scene confirmed both her involvement and the authenticity of the police abstract issued to her.
11. The Appellant further submitted that Sergeant Biganda neither attended the scene nor participated in the investigation and that his conclusion was based exclusively on police records prepared by other officers. She maintained that an omission by the police could not properly be visited upon an innocent accident victim.
12. On quantum, the Appellant proposed an award of Kshs.250,000 as general damages and Kshs.4,550 as special damages. She relied on Patrick Mwiti M’Imanene & another v Kevin Mugambi Nkunja, where an award of Kshs.170,000 was made for soft-tissue injuries.
13. The Respondent did not file written submissions in opposition to the appeal. That omission does not, however, relieve the Appellant of the legal burden of demonstrating that the trial court’s decision was erroneous.
D. Issues for Determination
14. I have considered the record of appeal, the judgment dated 30th July 2024, the grounds of appeal, the Appellant’s submissions and the authorities cited. The issues for determination are;
i) Whether the Appellant proved that she was a passenger in motor vehicle registration number KCH 154G,
ii) Whether negligence and vicarious liability were proved and, if so, the appropriate damages.
E. Duty of this Court
15. This being a first appeal, this Court is required to reconsider and evaluate the evidence and reach its own independent conclusion, while bearing in mind that it did not see or hear the witnesses testify. The Court of Appeal restated that duty in Charles Ogolla Obiero v Joseph Munyambu Karega [2017] KECA 623 (KLR), observing that a first appellate court may interfere where the trial court’s finding was based on no evidence, a misapprehension of the evidence or a wrong principle. It is on that basis that I shall examine the findings challenged in this appeal.
F. Analysis and Determination
i) Whether the Appellant proved that she was a passenger in motor vehicle registration number KCH 154G
16. Under sections 107 to 109 of the Evidence Act, the Appellant bore the burden of proving on a balance of probabilities that she was a passenger in the vehicle and was injured in the accident of 3rd September 2019. The police abstract was relevant evidence, but it was neither conclusive proof of her involvement nor the only means by which that fact could be established.
17. The Appellant’s oral evidence given on 22nd November 2022 was consistent with her written statement dated 19th September 2019. She identified the motor vehicle, the road, the place and approximate time of the accident, the manner in which the vehicle lost control and the injuries she sustained. Her account was supported by the treatment notes dated 3rd September 2019, which placed her at Kangundo Level 4 Hospital on the date of the accident, and by the medical report dated 13th September 2019, which recorded injuries to her lower back and right arm.
18. The Appellant also produced the police abstract dated 12th September 2019. More significantly, the police officer who attended the scene claimed that the Appellant was one of the casualties. He explained that motor vehicle registration number KCH 154G carried approximately 18 passengers, whereas only 11 names were initially entered in the Occurrence Book. That evidence provided a reasonable explanation for the absence of the Appellant’s name from the initial entry. He also stated that PC Linet his colleague had rushed to Kangundo Level 4 Hospital and had taken the particulars of the injured passengers. He claimed that the name of the appellant was missing as she went to another hospital. However, the appellant claimed that she was treated at Kangundo Level 4 Hospital. One wonders how her name could have been missed.
19. The Respondent’s witness, Sergeant Biganda, did not attend the accident scene, did not investigate the accident and did not issue the police abstract dated 12th September 2019. His evidence was that he subsequently examined the Occurrence Book and did not find the Appellant’s name. His evidence concerning the contents of the police record was admissible and the conclusion that the Appellant was not involved inevitably follow from that omission, particularly that after an accident all injured passengers must be recorded in the OB.
20. In Robinson Ochola Awuonda v House of Manji [2015] KECA 490 (KLR), the Court of Appeal held that the absence of a police abstract is not fatal where credible evidence proves that an accident occurred and that the claimant was involved. The relevance of that decision to the present appeal is that a police record is part of the evidential material and not an exclusive statutory gateway through which passenger status must be proved.
21. The same approach was taken by the Court of Appeal in Samuel Gikuru Ndungu v Coast Bus Company Ltd [2000] KECA 374 (KLR). The Court found that a passenger’s involvement in an accident could be established through oral testimony and documentary evidence such as a police abstract and that a fare receipt or some other particular document was not indispensable. In the present case.
22. I have also considered the authority of Maina v Thuo [2023] KECA 711 (KLR), where the Court of Appeal upheld the dismissal of a claim because discrepancies concerning the claimant’s identity, passenger status and injuries went to the root of the case.
The dispute here arose primarily from the absence of her name in the Occurrence Book.
23. The pertinent question was not simply whether the Appellant’s name appeared in that record, but whether all the evidence, considered together, established her involvement on a balance of probabilities. Once it was accepted that the vehicle could have carried more passengers than were entered in the Occurrence Book on the day of accident, the omission of her name even later does not have a proper explanation. According to DW1, all victim’s names must be placed in the OB even if they report later. He said he checked the entire year in the OB and did not find the appellant’s name.
24. I consequently find that the Appellant failed to prove, on a balance of probabilities, that she was a passenger in motor vehicle registration number KCH 154G and was injured when it was involved in the accident on 3rd September 2019.
ii) Whether negligence and vicarious liability were proved and, if so, the appropriate damages.
25. Since the Appellant has not proved that she was a passenger in that vehicle, I see no need to determine the issue of negligence and vicarious liability.
Quantum of Damages
26. The trial court dismissed the claim without stating what it would have awarded had the Appellant succeeded. The Court of Appeal in Andrew Mwori Kasaya v Kenya Bus Service [2016] KECA 408 (KLR) reiterated that a trial court should assess damages even where it dismisses a claim on liability, so that an appellate court is not deprived of the benefit of its assessment if the finding on liability is overturned.
27. The injuries pleaded in the Plaint dated 19th September 2019 and confirmed by the medical report dated 13th September 2019 were pain and tenderness in the lower back and right arm. The Appellant was treated as an outpatient. There was no fracture, admission, surgery or permanent incapacity. The injuries were therefore soft-tissue injuries from which the Appellant was expected to recover.
28. In assessing damages, comparable injuries should, as far as possible, attract comparable awards while allowance is made for inflation and the circumstances of the particular case. That principle was affirmed by the Court of Appeal in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 71 (KLR).
29. The injuries in Patrick Mwiti M’Imanene & another v Kevin Mugambi Nkunja, [2013] KEHC 4352 (KLR) relied upon by the Appellant, included injuries to the scalp, shoulder, knee, neck and back and were more extensive than those suffered in the present case. However, the award of Kshs.170,000 in that case was made many years ago. Taking account of the Appellant’s injuries, the absence of permanent disability, the passage of time and inflation, I find that Kshs.200,000 is fair compensation for pain, suffering and loss of amenities and would have awarded the same had the appellant proved her case.
30. The Appellant pleaded special damages of Kshs.4,550 in the Plaint dated 19th September 2019, comprising the charges for the P3 form, medical report and motor vehicle search. The corresponding documents and receipts formed part of the trial record. I am satisfied that the amount was specifically pleaded and sufficiently proved and I therefore would have awarded Kshs.4,550.
G. Disposition
31. The appeal fails. The judgment and decree delivered on 30th July 2024 in Kangundo Civil Suit No. 201 of 2019 are hereby upheld. The appeal is dismissed with costs to the Respondent.
32. It is so ordered.
DATED, SIGNED AND DELIVERED THIS 27th DAY OF JULY 2026 IN THE PRESENCE OF:
NO PARTY PRESENT.
BEFORE HON JOYCE MKAMBE GANDANI
JUDGE
Court Assistant: BEN
1. The Appellant commenced Kangundo Civil Suit No. 201 of 2019 through the Plaint dated 19th September 2019. She pleaded that on 3rd September 2019 at about 12.00 noon, she was travelling as a fare-paying passenger in motor vehicle registration number KCH 154G along the Tala–Kangundo Road when, at Ngonda area, the driver lost control of the vehicle, causing it to veer off the road and land on its left side.
2. The Appellant attributed the accident to the negligence of the Respondent’s driver and pleaded that she suffered pain and tenderness in her lower back and right arm. She sought general damages for pain, suffering and loss of amenities, special damages of Kshs.4,550, costs and interest.
3. In the Defence dated 11th November 2019, the Respondent denied ownership of motor vehicle registration number KCH 154G, denied that the Appellant had been a passenger in the vehicle and denied the particulars of negligence pleaded against him. In the alternative, he attributed the accident to the Appellant’s negligence.
4. The Appellant testified before the trial court on 22nd November 2022. She stated that she was travelling aboard motor vehicle registration number KCH 154G when it lost control and veered off the road. She sustained injuries to her back and right arm and was treated at Kangundo Level 4 Hospital. She relied on, among other documents, the treatment notes dated 3rd September 2019, the police abstract dated 12th September 2019, the medical report dated 13th September 2019 and the copy of records dated 10th September 2019.
5. A police officer who had attended the accident scene also testified for the Appellant on 16th April 2024. His evidence was that the vehicle had approximately 18 passengers, but only 11 were initially recorded in the Occurrence Book. He confirmed that the Appellant was a casualty in the accident and that the police abstract issued to her was genuine.
6. The Respondent called Sergeant Robert Biganda, who testified on 16th April 2024. His evidence was that the Appellant’s name did not appear in the Occurrence Book and that she could not, therefore, have been involved in the accident. He relied on the police records and the letter from Kangundo Traffic Base dated 5th July 2021, which purported to invalidate the P3 forms and police abstracts issued to several persons whose names were not recorded in the Occurrence Book.
7. By the judgment delivered on 30th July 2024, the learned trial magistrate found that the Appellant had not proved that she was a passenger in the vehicle because her name did not appear in the Occurrence Book. The court held that the Respondent consequently owed her no duty of care and dismissed her suit with costs.
B. Grounds of Appeal
8. Aggrieved by that decision, the Appellant lodged the present appeal. The grounds set out in the Memorandum of Appeal are reproduced verbatim as follows:
1. The Learned Magistrate erred in Law and in fact by dismissing the Appellant’s case due to her name not being found in the Police occurrence book.
2. The Learned Magistrate erred in Law and in fact by disregarding and failing to appreciate the whole evidence tabled by the Appellant.
3. The Learned Magistrate erred in Law and in fact by relying on the hearsay evidence of the defence witness Sergeant Robert Biganda who was not the investigating officer nor stationed at Kangundo Police Station at the time of the accident in question.
4. The Learned Magistrate erred in Law and in fact by not putting any consideration to the Plaintiff’s submissions or fully analyzing the Plaintiff’s Submissions before arriving at her Judgment.
5. The Learned Magistrate erred in Law and in fact by finding that the Appellant had not proved that she was involved in the accident.
6. The Learned Magistrate erred in Law and in fact by finding that the defendant did not owe the plaintiff a duty of care as she was not a passenger in the defendant’s motor vehicle.
7. The Learned Magistrate erred in Law and in fact by dismissing the Appellant’s suit with costs.
9. The Appellant asked this Court to set aside the judgment dated 30th July 2024, find the Respondent liable and award general and special damages together with the costs of the proceedings before the subordinate court and of this appeal.
C. Submissions
10. In her written submissions, the Appellant contended that the trial court placed undue reliance on the omission of her name from the Occurrence Book and failed to consider the totality of the evidence. She argued that the police officer who attended the scene confirmed both her involvement and the authenticity of the police abstract issued to her.
11. The Appellant further submitted that Sergeant Biganda neither attended the scene nor participated in the investigation and that his conclusion was based exclusively on police records prepared by other officers. She maintained that an omission by the police could not properly be visited upon an innocent accident victim.
12. On quantum, the Appellant proposed an award of Kshs.250,000 as general damages and Kshs.4,550 as special damages. She relied on Patrick Mwiti M’Imanene & another v Kevin Mugambi Nkunja, where an award of Kshs.170,000 was made for soft-tissue injuries.
13. The Respondent did not file written submissions in opposition to the appeal. That omission does not, however, relieve the Appellant of the legal burden of demonstrating that the trial court’s decision was erroneous.
D. Issues for Determination
14. I have considered the record of appeal, the judgment dated 30th July 2024, the grounds of appeal, the Appellant’s submissions and the authorities cited. The issues for determination are;
i) Whether the Appellant proved that she was a passenger in motor vehicle registration number KCH 154G,
ii) Whether negligence and vicarious liability were proved and, if so, the appropriate damages.
E. Duty of this Court
15. This being a first appeal, this Court is required to reconsider and evaluate the evidence and reach its own independent conclusion, while bearing in mind that it did not see or hear the witnesses testify. The Court of Appeal restated that duty in Charles Ogolla Obiero v Joseph Munyambu Karega [2017] KECA 623 (KLR), observing that a first appellate court may interfere where the trial court’s finding was based on no evidence, a misapprehension of the evidence or a wrong principle. It is on that basis that I shall examine the findings challenged in this appeal.
F. Analysis and Determination
i) Whether the Appellant proved that she was a passenger in motor vehicle registration number KCH 154G
16. Under sections 107 to 109 of the Evidence Act, the Appellant bore the burden of proving on a balance of probabilities that she was a passenger in the vehicle and was injured in the accident of 3rd September 2019. The police abstract was relevant evidence, but it was neither conclusive proof of her involvement nor the only means by which that fact could be established.
17. The Appellant’s oral evidence given on 22nd November 2022 was consistent with her written statement dated 19th September 2019. She identified the motor vehicle, the road, the place and approximate time of the accident, the manner in which the vehicle lost control and the injuries she sustained. Her account was supported by the treatment notes dated 3rd September 2019, which placed her at Kangundo Level 4 Hospital on the date of the accident, and by the medical report dated 13th September 2019, which recorded injuries to her lower back and right arm.
18. The Appellant also produced the police abstract dated 12th September 2019. More significantly, the police officer who attended the scene claimed that the Appellant was one of the casualties. He explained that motor vehicle registration number KCH 154G carried approximately 18 passengers, whereas only 11 names were initially entered in the Occurrence Book. That evidence provided a reasonable explanation for the absence of the Appellant’s name from the initial entry. He also stated that PC Linet his colleague had rushed to Kangundo Level 4 Hospital and had taken the particulars of the injured passengers. He claimed that the name of the appellant was missing as she went to another hospital. However, the appellant claimed that she was treated at Kangundo Level 4 Hospital. One wonders how her name could have been missed.
19. The Respondent’s witness, Sergeant Biganda, did not attend the accident scene, did not investigate the accident and did not issue the police abstract dated 12th September 2019. His evidence was that he subsequently examined the Occurrence Book and did not find the Appellant’s name. His evidence concerning the contents of the police record was admissible and the conclusion that the Appellant was not involved inevitably follow from that omission, particularly that after an accident all injured passengers must be recorded in the OB.
20. In Robinson Ochola Awuonda v House of Manji [2015] KECA 490 (KLR), the Court of Appeal held that the absence of a police abstract is not fatal where credible evidence proves that an accident occurred and that the claimant was involved. The relevance of that decision to the present appeal is that a police record is part of the evidential material and not an exclusive statutory gateway through which passenger status must be proved.
21. The same approach was taken by the Court of Appeal in Samuel Gikuru Ndungu v Coast Bus Company Ltd [2000] KECA 374 (KLR). The Court found that a passenger’s involvement in an accident could be established through oral testimony and documentary evidence such as a police abstract and that a fare receipt or some other particular document was not indispensable. In the present case.
22. I have also considered the authority of Maina v Thuo [2023] KECA 711 (KLR), where the Court of Appeal upheld the dismissal of a claim because discrepancies concerning the claimant’s identity, passenger status and injuries went to the root of the case.
The dispute here arose primarily from the absence of her name in the Occurrence Book.
23. The pertinent question was not simply whether the Appellant’s name appeared in that record, but whether all the evidence, considered together, established her involvement on a balance of probabilities. Once it was accepted that the vehicle could have carried more passengers than were entered in the Occurrence Book on the day of accident, the omission of her name even later does not have a proper explanation. According to DW1, all victim’s names must be placed in the OB even if they report later. He said he checked the entire year in the OB and did not find the appellant’s name.
24. I consequently find that the Appellant failed to prove, on a balance of probabilities, that she was a passenger in motor vehicle registration number KCH 154G and was injured when it was involved in the accident on 3rd September 2019.
ii) Whether negligence and vicarious liability were proved and, if so, the appropriate damages.
25. Since the Appellant has not proved that she was a passenger in that vehicle, I see no need to determine the issue of negligence and vicarious liability.
Quantum of Damages
26. The trial court dismissed the claim without stating what it would have awarded had the Appellant succeeded. The Court of Appeal in Andrew Mwori Kasaya v Kenya Bus Service [2016] KECA 408 (KLR) reiterated that a trial court should assess damages even where it dismisses a claim on liability, so that an appellate court is not deprived of the benefit of its assessment if the finding on liability is overturned.
27. The injuries pleaded in the Plaint dated 19th September 2019 and confirmed by the medical report dated 13th September 2019 were pain and tenderness in the lower back and right arm. The Appellant was treated as an outpatient. There was no fracture, admission, surgery or permanent incapacity. The injuries were therefore soft-tissue injuries from which the Appellant was expected to recover.
28. In assessing damages, comparable injuries should, as far as possible, attract comparable awards while allowance is made for inflation and the circumstances of the particular case. That principle was affirmed by the Court of Appeal in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 71 (KLR).
29. The injuries in Patrick Mwiti M’Imanene & another v Kevin Mugambi Nkunja, [2013] KEHC 4352 (KLR) relied upon by the Appellant, included injuries to the scalp, shoulder, knee, neck and back and were more extensive than those suffered in the present case. However, the award of Kshs.170,000 in that case was made many years ago. Taking account of the Appellant’s injuries, the absence of permanent disability, the passage of time and inflation, I find that Kshs.200,000 is fair compensation for pain, suffering and loss of amenities and would have awarded the same had the appellant proved her case.
30. The Appellant pleaded special damages of Kshs.4,550 in the Plaint dated 19th September 2019, comprising the charges for the P3 form, medical report and motor vehicle search. The corresponding documents and receipts formed part of the trial record. I am satisfied that the amount was specifically pleaded and sufficiently proved and I therefore would have awarded Kshs.4,550.
G. Disposition
31. The appeal fails. The judgment and decree delivered on 30th July 2024 in Kangundo Civil Suit No. 201 of 2019 are hereby upheld. The appeal is dismissed with costs to the Respondent.
32. It is so ordered.
DATED, SIGNED AND DELIVERED THIS 27th DAY OF JULY 2026 IN THE PRESENCE OF:
NO PARTY PRESENT.
BEFORE HON JOYCE MKAMBE GANDANI
JUDGE
Court Assistant: BEN