(Being an appeal from the Judgment delivered by Hon. C.Ireri, RM Nairobi SCCC No. E5043 of 2023 delivered on 26 th March, 2024)
Background
1. This is an appeal arising from judgment of Hon. C. Ireri delivered on 26 th March 2024 in SCC at Milimani Civil suit No. E5043 of 2023. The suit originated from a Statement of claim dated 4 th October, 2023 filed by Nashon Mugadi Mbao being the Claimant in the small claims court against Eliud Maina Mwangi, the Respondent.
2. In the suit, the Appellant sought reliefs against the respondent in the nature of general damages and special damages of Kshs. 5,550/-. The dispute arose out of a road traffic accident which occurred on or about 13 th September, 2023. It was alleged that the respondent was at all material times the driver of motor vehicle registration number KCH 369U. It was further pleaded in the claim that on the material date, the subject motor vehicle was so negligently, carelessly driven or controlled and managed by the respondent or driven at a high speed that it lost control and hit the handcart’s right wheel thereby injuring the appellant who was a lawful pedestrian pushing the handcart.
3. The respondent filed his response to the statement of claim dated 13 th October, 2023 denying the averments in respect to negligence and liability on its part.
4. The suit proceeded to full hearing with the testimonies of the appellant, (CW1), the traffic police officer, (CW2) and the respondent, (CW3). Upon close of submissions, the trial court delivered its judgment on 26 th March, 2024 holding the appellant 100% liable for the accident with no determination as to quantum.
5. Aggrieved by the outcome, the Appellant preferred this appeal premised on the following grounds-
(a) That the learned Magistrate erred and misdirected herself in fact and law by apportioning 100% liability to the appellant and finding that the appellant was pushing the cart on the wrong side of the road.
(b) That the Learned Magistrate erred in law and fact by failing to consider that the cart was hit at the right wheel when the respondent was overtaking another motor vehicle.
(c) That the Learned Magistrate erred in law and fact in failing to consider the medical evidence adduced by the appellant.
(d) That the Learned Magistrate erred in law and fact in dismissing the appellant’s claim.
6. The Appellant therefore seeks to have the trial court’s judgment set aside and substituted with a judgment against the respondent and award of damages for the injuries sustained.
7. In his written submissions dated 20 th November, 2025, the appellant stated that he was lawfully walking along Outering Road pushing a hand cart on a dual carriage way when the respondent, who was trying to overtake, swerved to his right hitting the handcart from the right side, where he suffered injuries.
8. The appellant further submitted that there was no dispute that the accident occurred and insisted that both the appellant and the respondent were heading to the same direction when the accident occurred. He submitted that the respondent was to blame for the accident as he was at the back with a clear view of the appellant and was in a position to avert the accident. He placed reliance in the case of Yusuf Abdi & Another v Abihael Yako & Another (suing as the legal representative of the estate of Moses Gijo Moghere) [2021] eKLR .
9. He further asserted that the trial Magistrate relied on the wrong principles and left out relevant factors hence erred by shifting liability to him yet he was hit from behind. He cited the case of Morris Mutinda Musyoka v Kimani Dominic (2024) eKLR on the issue of apportionment of liability.
10. He further contended that the trial court did not consider his evidence, witness statements and award of quantum before arriving at her decision. He stated that he was able to demonstrate that he sustained injuries out of the accident which was caused by the respondent’s negligence. He placed reliance in the case of Barnabas v Ombati (Civil Appeal E43 of 2021) [2022] KEHC 12136 on the guiding principles regarding assessment of damages. He urged the Court to consider awarding the appellant general damages of Kshs. 600,000/- as fit and reasonable award for the injuries sustained.
11. The Respondent opposed the appeal through written submissions dated 27/1/2026. On liability, the respondent supported the finding of the trial court that the appellant was 100% to blame for the accident. He argued that the appellant was blamed for the accident as it was being pushed from the wrong side of the road. He further stated that the appellant did not have a reflector jacket to warn other motorists of his presence on the road, albeit being on the wrong side of the road.
12. He also pointed out the inconsistencies in the appellant’s case. It was alleged that the accident occurred on 13 th September, 2023 at Allsops. The police abstract indicated that the accident occurred at Donholm and the P3 form indicate that the accident occurred on 13 th July, 2023. He further stated that the appellant did not prove the date and the place where the accident occurred. He placed reliance in the case of Atta Kenya Limited vs. Philip Mwania (2017) KEHC 5938 (KLR ) on mismatch and inconsistency of the appellant’s averments.
13. On quantum, the respondent supported the trial court’s findings. He submitted that the trial court analyzed the evidence before it and relied on the correct principles in arriving at its decision. He submitted that the appellant did not prove that the injuries he sustained were directly linked to the respondent’s negligence. He placed reliance in the case of Statpack Industries vs. James Mbithi Munyao [2005] KEHC 2043 (KLR) on the proof of causal link between someone’s negligence and his injury.
14. On costs of the appeal, the respondent submitted that the same should be borne by the appellant in accordance with section 27 of the Civil Procedure Act.
Determination.
15. This court has evaluated the Appellant’s case as well as the opposition by the Respondent. This appeal is on both liability and quantum. This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. ( Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123 ). This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings- Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348 ).
16. On liability, I have noted the evidence tendered by both parties at the trial court. What is apparent from the record is that the expert evidence of CW2, PC Fairfax Masinde, to a large extent is not reliable on whom was to blame for the accident.
17. PC Masinde testified that he was attached to Buruburu police station, Traffic unit, and he was in court to produce a Police Abstract dated 18 th September, 2023 regarding an accident which occurred on 13/09/2023 between a motor vehicle registration number KCH 369U and a handcart pusher along Outering Road- Donholm. He pointed out that he was not the investigating officer in the traffic case as it was assigned to one PC Kirui. He also stated that the report was booked on OB by one PC Eunice Chirchir. He stated that the case was pending under investigation.
18. On cross examination, he confirmed that he was not the investigating officer. He pointed out that the report was booked in the OB as a non-injury accident. He further stated that the matter was re-booked by one PC Serem on 18/09/2023 and a fresh Abstract and OB were issued. It is not clear from his evidence why the case was re-booked. He admitted that he was not able to tell the direction the motor vehicle was headed to and was relying on the information he was being told. He further stated that no one had been charged for the accident and admitted that the subject motor- vehicle was not inspected.
19. PC Masinde did not state whether the investigating officer handed over the file to him or on what capacity he was standing in on behalf of the investigating officer. Section 33 of the Evidence Act is clear that when an expert witness testifying on behalf of a colleague who cannot be found or who cannot be procured without incurring expenses deemed unnecessary or unreasonable by court, he must lay basis before stepping on the shoes of the author of a document which in this case was the Police Abstract.
20. CW2 failed to lay sufficient basis on reasons why he was stepping in for the investigating officer. He simply stated that he was a police officer attached to Buruburu police station traffic. He did not give information on whether he had been assigned investigation duties of the traffic incident and did not state why traffic officer handling the matter was not called to testify. He also crucially did not give details on how the accident occurred. This is what he stated in his evidence;
“I was not the investigating officer in this matter, it was PC Kirui…….according to the OB of 13/09/2023, the handcart pusher was blamed for the accident…………in the Abstract issued on 18/09/2023, the case was pending under investigation……I cannot tell the direction the motor vehicle was headed to….I’m relying on information that I’m being told……..No one has been charged for the accident. It was reported as a non-injury accident…the motor vehicle was not inspected”
21. The evidence given by CW2, with regard to whom was to blame for the accident was unreliable given that he was not the investigating officer which rendered his evidence hearsay and of little value to the appellant’s case in regard to the issue of liability. The applicant’s’ case in light of the above only rested on his evidence and the Police Abstract.
22. The evidence of CW1 indicate that the subject motor vehicle was over speeding and being carelessly driven at Outering road heading towards Kayole where it knocked the handcart from behind causing him injuries. He stated he lost consciousness and went on his own to Mama Lucy hospital for treatment when he regained consciousness. He stated that one Ondiek was on the front side of the hand cart. The said Ondiek was not called to testify and it is difficult to tell how the accident occurred. This court however takes cognizance, according to the medical reports on record, that the appellant was attended to at Mama Lucy Kibaki Hospital for the injuries sustained. The degree of injury is classified in the P3 form as grievous harm.
23. The Respondent on the other hand, testified that he was driving the subject motor vehicle around 7.45 from Donholm. He stated that he was on the service lane joining the road when a matatu suddenly stopped forcing him to swerve to his right when he saw the handcart on the pavement. He asserted that the handcart was on the wrong side of the road.
24. He blamed the appellant for the accident and for not wearing any reflectors to warn other road users of his presence. He further averred that when he alighted, no one was there. He proceeded to Buruburu Police Station where he reported the incident. He was issued with a Police Abstract and he was never contacted thereafter by the police. He stated that the subject motor- vehicle was inspected and it was found to be in good condition. This court notes that this was a contradiction to CW2’s assertion that the subject motor vehicle was not inspected.
25. On cross- examination, he stated that he did not see the hand cart as a matatu which suddenly stopped on the road blocked his view. It is in his evidence that he tried to engage the brakes but the vehicle still hit the pavement and hit the hand cart on the side.
26. This court also notes the discrepancies in the dates indicated as the date of the accident. The Police Abstract dated 18 th September, 2023 indicates that the accident occurred on 13/09/2023 while the Medicolegal Report by Dr. Okoth Okere indicates that the accident occurred on 15/07/2023. The Police Surgeon/medical Report dated 18/09/2023 indicate that the accident occurred on 15/07/2023. It is also noted that the X-Ray Request/Report Form is undated. This court however notes that the parties undoubtedly admit that the accident occurred, the only contention is who among them was liable for the accident.
27. Based on the above analysis, this court finds that the trial court fell into error by finding that the appellant was solely or 100% liable for the accident based on the evidence available. The police abstract could not sufficiently lay entire blame on the appellant as it was indicated that the matter was pending under investigation.
28. The evidence of CW2 was challenged on cross examination where he admitted that he was not the investigating officer and he was not sure who was to blame for the accident apart from what he had been informed. He also pointed out that the matter was pending under investigation and no party had been charged for the accident. He could not lay blame on any of the parties. He did not produce any sketch map nor any other documents apart from the Police Abstract.
29. I therefore find that the circumstances of this case leave doubt as to who caused the accident. I rely on the guidance of the court of Appeal’s decision in Hussein Farah Vs. Lento Agencies [2006] eKLR where the Court held that; “… where the circumstances leave doubt as to who caused the accident, liability may properly be apportioned between the parties” and hold that liability should be shared between the appellant and the respondent at the ratio of 50:50%.
30. After finding the parties equally liable, this Court will address the issue of quantum and assessment of damages. The appellant argued that the trial court failed to consider his evidence and submissions and failed to make any award for general damages. He submitted that the possible comparable injuries should be compensated by comparable awards and submitted that the authorities relied on awarded Kshs. 500,000/- for comparable injuries. He urged the court to consider awarding him Kshs. 600,000/- as adequate compensation for the injuries sustained.
31. The respondent on the other hand argued that the appellant did not prove that the injuries sustained were directly linked to the negligence of the respondent and therefore the trial court did not err in finding him 100% liable for the accident.
32. From the evidence on record and the medical report by Dr. Okoth Okere, the appellant suffered the following injuries; tender right lower limb and fracture of the fibula. His injuries were classified as grievous harm with permanent incapacity assessed at 10%.
33. In the Kenya Power and Lighting Company Ltd. Vs. Zakayo Saitoti Ningola Nairobi Civil Appeal No. 522 of 2004 , the court stated that in assessing damages, the court has to bear in mind the following principles-
i. Damages should not be inordinately too high or too low;
ii. They are meant to compensate a party for the loss suffered but not to enrich a party, and each case depends on its facts;
iii. Where past decisions are taken into consideration, they should be taken as mere guidelines and each case depends on its own facts;
iv. Where past awards are taken into consideration as guides, an element of inflation should be taken into consideration.
34. Having looked at the authorities cited, and bearing in mind that there are hardly two cases that can be said to be similar in injuries, disability or consequences and the fact that each case depends on its own facts, I have considered the awards in the following cases:
• Moses Kiragu Kairegi v Chinga Tea Factory [2018] eKLR where the court enhanced an award of Ksh.300,000/= to Ksh. 600,000/= where the claimant had suffered a fracture of the proximal 1/3 of the right tibia and the distal 1/3 of the fibula which had left him with 15% disability.
• Stephen Kamau Wanderi & Another –vs- Gladys Wanjiku Kungu [2006] eKLR where the Respondent was awarded Kshs.600,000/= for a compound fracture of the left tibia and fibula with permanent disability assessed at about 20%.
• Muchemi v Tarus (Civil Appeal 93 of 2021) [2022] KEHC 17143 (KLR) (22 November 2022) (Judgment) where an award of Ksh.1,200,000/= was reduced to Ksh.700,000/= in a case where the claimant had sustained fracture of the left tibia and fibula bone; blunt injury of the left ankle; cut wound on the back of the head and stiffness of the left knee. The injuries had left him with disability of 30%.
• Kelvin v Runyambo (Civil Appeal E091 of 2021) [2023] KEHC 25388 (KLR) (Civ) (17 November 2023) (Judgment) where an award of Ksh.1,000,0000/= was on appeal reduced to Ksh.600,000/= in a case where the claimant sustained a mid-shaft fracture of the left tibia and fibula and suffered a swollen tender and painful leg. The doctor assessed the degree of permanent incapacity at 10%.
35. This Court is of the view that the awards in the above cases compare well with the injuries sustained by the appellant herein and are a good guide in determining an appropriate award to the appellant. Considering that the appellant sustained one fracture and was left with a permanent incapacity of 10%, I am of the view that an award of Ksh. 200,000/= would be sufficient compensation for the injuries suffered by the appellant.
36. In summary, this appeal is allowed for the aforesaid reasons. The decision of the trial court is hereby set aside. In its place, liability is entered against the appellant at 50% and the respondent at 50%. The award on quantum is assessed at Kshs 200,000/=.
37. For avoidance of doubt, judgment is entered against the Respondent as follows;
(a) Liability 50%
(b) General damages Kshs.200,000/-
(c) Special damages Kshs. 5,550/-
Total Kshs. 205,550/-
Less 50% Kshs.102,775/-
Net Total Kshs. 102,775/-
(d) Interest at court rates from the date of judgment.
(e) Each party to bear its own costs both at the lower court and appeal.
DELIVERED, DATED and SIGNED at NAIROBI this 17 th day of SEPTEMBER, 2026.
Judgment delivered virtually court
In the presence of:
Tirop h/b for Andego for the Appellant
Koech for the Respondent
Susan Nzioka – Court Assistant
2
Background
1. This is an appeal arising from judgment of Hon. C. Ireri delivered on 26 th March 2024 in SCC at Milimani Civil suit No. E5043 of 2023. The suit originated from a Statement of claim dated 4 th October, 2023 filed by Nashon Mugadi Mbao being the Claimant in the small claims court against Eliud Maina Mwangi, the Respondent.
2. In the suit, the Appellant sought reliefs against the respondent in the nature of general damages and special damages of Kshs. 5,550/-. The dispute arose out of a road traffic accident which occurred on or about 13 th September, 2023. It was alleged that the respondent was at all material times the driver of motor vehicle registration number KCH 369U. It was further pleaded in the claim that on the material date, the subject motor vehicle was so negligently, carelessly driven or controlled and managed by the respondent or driven at a high speed that it lost control and hit the handcart’s right wheel thereby injuring the appellant who was a lawful pedestrian pushing the handcart.
3. The respondent filed his response to the statement of claim dated 13 th October, 2023 denying the averments in respect to negligence and liability on its part.
4. The suit proceeded to full hearing with the testimonies of the appellant, (CW1), the traffic police officer, (CW2) and the respondent, (CW3). Upon close of submissions, the trial court delivered its judgment on 26 th March, 2024 holding the appellant 100% liable for the accident with no determination as to quantum.
5. Aggrieved by the outcome, the Appellant preferred this appeal premised on the following grounds-
(a) That the learned Magistrate erred and misdirected herself in fact and law by apportioning 100% liability to the appellant and finding that the appellant was pushing the cart on the wrong side of the road.
(b) That the Learned Magistrate erred in law and fact by failing to consider that the cart was hit at the right wheel when the respondent was overtaking another motor vehicle.
(c) That the Learned Magistrate erred in law and fact in failing to consider the medical evidence adduced by the appellant.
(d) That the Learned Magistrate erred in law and fact in dismissing the appellant’s claim.
6. The Appellant therefore seeks to have the trial court’s judgment set aside and substituted with a judgment against the respondent and award of damages for the injuries sustained.
7. In his written submissions dated 20 th November, 2025, the appellant stated that he was lawfully walking along Outering Road pushing a hand cart on a dual carriage way when the respondent, who was trying to overtake, swerved to his right hitting the handcart from the right side, where he suffered injuries.
8. The appellant further submitted that there was no dispute that the accident occurred and insisted that both the appellant and the respondent were heading to the same direction when the accident occurred. He submitted that the respondent was to blame for the accident as he was at the back with a clear view of the appellant and was in a position to avert the accident. He placed reliance in the case of Yusuf Abdi & Another v Abihael Yako & Another (suing as the legal representative of the estate of Moses Gijo Moghere) [2021] eKLR .
9. He further asserted that the trial Magistrate relied on the wrong principles and left out relevant factors hence erred by shifting liability to him yet he was hit from behind. He cited the case of Morris Mutinda Musyoka v Kimani Dominic (2024) eKLR on the issue of apportionment of liability.
10. He further contended that the trial court did not consider his evidence, witness statements and award of quantum before arriving at her decision. He stated that he was able to demonstrate that he sustained injuries out of the accident which was caused by the respondent’s negligence. He placed reliance in the case of Barnabas v Ombati (Civil Appeal E43 of 2021) [2022] KEHC 12136 on the guiding principles regarding assessment of damages. He urged the Court to consider awarding the appellant general damages of Kshs. 600,000/- as fit and reasonable award for the injuries sustained.
11. The Respondent opposed the appeal through written submissions dated 27/1/2026. On liability, the respondent supported the finding of the trial court that the appellant was 100% to blame for the accident. He argued that the appellant was blamed for the accident as it was being pushed from the wrong side of the road. He further stated that the appellant did not have a reflector jacket to warn other motorists of his presence on the road, albeit being on the wrong side of the road.
12. He also pointed out the inconsistencies in the appellant’s case. It was alleged that the accident occurred on 13 th September, 2023 at Allsops. The police abstract indicated that the accident occurred at Donholm and the P3 form indicate that the accident occurred on 13 th July, 2023. He further stated that the appellant did not prove the date and the place where the accident occurred. He placed reliance in the case of Atta Kenya Limited vs. Philip Mwania (2017) KEHC 5938 (KLR ) on mismatch and inconsistency of the appellant’s averments.
13. On quantum, the respondent supported the trial court’s findings. He submitted that the trial court analyzed the evidence before it and relied on the correct principles in arriving at its decision. He submitted that the appellant did not prove that the injuries he sustained were directly linked to the respondent’s negligence. He placed reliance in the case of Statpack Industries vs. James Mbithi Munyao [2005] KEHC 2043 (KLR) on the proof of causal link between someone’s negligence and his injury.
14. On costs of the appeal, the respondent submitted that the same should be borne by the appellant in accordance with section 27 of the Civil Procedure Act.
Determination.
15. This court has evaluated the Appellant’s case as well as the opposition by the Respondent. This appeal is on both liability and quantum. This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. ( Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123 ). This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings- Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348 ).
16. On liability, I have noted the evidence tendered by both parties at the trial court. What is apparent from the record is that the expert evidence of CW2, PC Fairfax Masinde, to a large extent is not reliable on whom was to blame for the accident.
17. PC Masinde testified that he was attached to Buruburu police station, Traffic unit, and he was in court to produce a Police Abstract dated 18 th September, 2023 regarding an accident which occurred on 13/09/2023 between a motor vehicle registration number KCH 369U and a handcart pusher along Outering Road- Donholm. He pointed out that he was not the investigating officer in the traffic case as it was assigned to one PC Kirui. He also stated that the report was booked on OB by one PC Eunice Chirchir. He stated that the case was pending under investigation.
18. On cross examination, he confirmed that he was not the investigating officer. He pointed out that the report was booked in the OB as a non-injury accident. He further stated that the matter was re-booked by one PC Serem on 18/09/2023 and a fresh Abstract and OB were issued. It is not clear from his evidence why the case was re-booked. He admitted that he was not able to tell the direction the motor vehicle was headed to and was relying on the information he was being told. He further stated that no one had been charged for the accident and admitted that the subject motor- vehicle was not inspected.
19. PC Masinde did not state whether the investigating officer handed over the file to him or on what capacity he was standing in on behalf of the investigating officer. Section 33 of the Evidence Act is clear that when an expert witness testifying on behalf of a colleague who cannot be found or who cannot be procured without incurring expenses deemed unnecessary or unreasonable by court, he must lay basis before stepping on the shoes of the author of a document which in this case was the Police Abstract.
20. CW2 failed to lay sufficient basis on reasons why he was stepping in for the investigating officer. He simply stated that he was a police officer attached to Buruburu police station traffic. He did not give information on whether he had been assigned investigation duties of the traffic incident and did not state why traffic officer handling the matter was not called to testify. He also crucially did not give details on how the accident occurred. This is what he stated in his evidence;
“I was not the investigating officer in this matter, it was PC Kirui…….according to the OB of 13/09/2023, the handcart pusher was blamed for the accident…………in the Abstract issued on 18/09/2023, the case was pending under investigation……I cannot tell the direction the motor vehicle was headed to….I’m relying on information that I’m being told……..No one has been charged for the accident. It was reported as a non-injury accident…the motor vehicle was not inspected”
21. The evidence given by CW2, with regard to whom was to blame for the accident was unreliable given that he was not the investigating officer which rendered his evidence hearsay and of little value to the appellant’s case in regard to the issue of liability. The applicant’s’ case in light of the above only rested on his evidence and the Police Abstract.
22. The evidence of CW1 indicate that the subject motor vehicle was over speeding and being carelessly driven at Outering road heading towards Kayole where it knocked the handcart from behind causing him injuries. He stated he lost consciousness and went on his own to Mama Lucy hospital for treatment when he regained consciousness. He stated that one Ondiek was on the front side of the hand cart. The said Ondiek was not called to testify and it is difficult to tell how the accident occurred. This court however takes cognizance, according to the medical reports on record, that the appellant was attended to at Mama Lucy Kibaki Hospital for the injuries sustained. The degree of injury is classified in the P3 form as grievous harm.
23. The Respondent on the other hand, testified that he was driving the subject motor vehicle around 7.45 from Donholm. He stated that he was on the service lane joining the road when a matatu suddenly stopped forcing him to swerve to his right when he saw the handcart on the pavement. He asserted that the handcart was on the wrong side of the road.
24. He blamed the appellant for the accident and for not wearing any reflectors to warn other road users of his presence. He further averred that when he alighted, no one was there. He proceeded to Buruburu Police Station where he reported the incident. He was issued with a Police Abstract and he was never contacted thereafter by the police. He stated that the subject motor- vehicle was inspected and it was found to be in good condition. This court notes that this was a contradiction to CW2’s assertion that the subject motor vehicle was not inspected.
25. On cross- examination, he stated that he did not see the hand cart as a matatu which suddenly stopped on the road blocked his view. It is in his evidence that he tried to engage the brakes but the vehicle still hit the pavement and hit the hand cart on the side.
26. This court also notes the discrepancies in the dates indicated as the date of the accident. The Police Abstract dated 18 th September, 2023 indicates that the accident occurred on 13/09/2023 while the Medicolegal Report by Dr. Okoth Okere indicates that the accident occurred on 15/07/2023. The Police Surgeon/medical Report dated 18/09/2023 indicate that the accident occurred on 15/07/2023. It is also noted that the X-Ray Request/Report Form is undated. This court however notes that the parties undoubtedly admit that the accident occurred, the only contention is who among them was liable for the accident.
27. Based on the above analysis, this court finds that the trial court fell into error by finding that the appellant was solely or 100% liable for the accident based on the evidence available. The police abstract could not sufficiently lay entire blame on the appellant as it was indicated that the matter was pending under investigation.
28. The evidence of CW2 was challenged on cross examination where he admitted that he was not the investigating officer and he was not sure who was to blame for the accident apart from what he had been informed. He also pointed out that the matter was pending under investigation and no party had been charged for the accident. He could not lay blame on any of the parties. He did not produce any sketch map nor any other documents apart from the Police Abstract.
29. I therefore find that the circumstances of this case leave doubt as to who caused the accident. I rely on the guidance of the court of Appeal’s decision in Hussein Farah Vs. Lento Agencies [2006] eKLR where the Court held that; “… where the circumstances leave doubt as to who caused the accident, liability may properly be apportioned between the parties” and hold that liability should be shared between the appellant and the respondent at the ratio of 50:50%.
30. After finding the parties equally liable, this Court will address the issue of quantum and assessment of damages. The appellant argued that the trial court failed to consider his evidence and submissions and failed to make any award for general damages. He submitted that the possible comparable injuries should be compensated by comparable awards and submitted that the authorities relied on awarded Kshs. 500,000/- for comparable injuries. He urged the court to consider awarding him Kshs. 600,000/- as adequate compensation for the injuries sustained.
31. The respondent on the other hand argued that the appellant did not prove that the injuries sustained were directly linked to the negligence of the respondent and therefore the trial court did not err in finding him 100% liable for the accident.
32. From the evidence on record and the medical report by Dr. Okoth Okere, the appellant suffered the following injuries; tender right lower limb and fracture of the fibula. His injuries were classified as grievous harm with permanent incapacity assessed at 10%.
33. In the Kenya Power and Lighting Company Ltd. Vs. Zakayo Saitoti Ningola Nairobi Civil Appeal No. 522 of 2004 , the court stated that in assessing damages, the court has to bear in mind the following principles-
i. Damages should not be inordinately too high or too low;
ii. They are meant to compensate a party for the loss suffered but not to enrich a party, and each case depends on its facts;
iii. Where past decisions are taken into consideration, they should be taken as mere guidelines and each case depends on its own facts;
iv. Where past awards are taken into consideration as guides, an element of inflation should be taken into consideration.
34. Having looked at the authorities cited, and bearing in mind that there are hardly two cases that can be said to be similar in injuries, disability or consequences and the fact that each case depends on its own facts, I have considered the awards in the following cases:
• Moses Kiragu Kairegi v Chinga Tea Factory [2018] eKLR where the court enhanced an award of Ksh.300,000/= to Ksh. 600,000/= where the claimant had suffered a fracture of the proximal 1/3 of the right tibia and the distal 1/3 of the fibula which had left him with 15% disability.
• Stephen Kamau Wanderi & Another –vs- Gladys Wanjiku Kungu [2006] eKLR where the Respondent was awarded Kshs.600,000/= for a compound fracture of the left tibia and fibula with permanent disability assessed at about 20%.
• Muchemi v Tarus (Civil Appeal 93 of 2021) [2022] KEHC 17143 (KLR) (22 November 2022) (Judgment) where an award of Ksh.1,200,000/= was reduced to Ksh.700,000/= in a case where the claimant had sustained fracture of the left tibia and fibula bone; blunt injury of the left ankle; cut wound on the back of the head and stiffness of the left knee. The injuries had left him with disability of 30%.
• Kelvin v Runyambo (Civil Appeal E091 of 2021) [2023] KEHC 25388 (KLR) (Civ) (17 November 2023) (Judgment) where an award of Ksh.1,000,0000/= was on appeal reduced to Ksh.600,000/= in a case where the claimant sustained a mid-shaft fracture of the left tibia and fibula and suffered a swollen tender and painful leg. The doctor assessed the degree of permanent incapacity at 10%.
35. This Court is of the view that the awards in the above cases compare well with the injuries sustained by the appellant herein and are a good guide in determining an appropriate award to the appellant. Considering that the appellant sustained one fracture and was left with a permanent incapacity of 10%, I am of the view that an award of Ksh. 200,000/= would be sufficient compensation for the injuries suffered by the appellant.
36. In summary, this appeal is allowed for the aforesaid reasons. The decision of the trial court is hereby set aside. In its place, liability is entered against the appellant at 50% and the respondent at 50%. The award on quantum is assessed at Kshs 200,000/=.
37. For avoidance of doubt, judgment is entered against the Respondent as follows;
(a) Liability 50%
(b) General damages Kshs.200,000/-
(c) Special damages Kshs. 5,550/-
Total Kshs. 205,550/-
Less 50% Kshs.102,775/-
Net Total Kshs. 102,775/-
(d) Interest at court rates from the date of judgment.
(e) Each party to bear its own costs both at the lower court and appeal.
DELIVERED, DATED and SIGNED at NAIROBI this 17 th day of SEPTEMBER, 2026.
Judgment delivered virtually court
In the presence of:
Tirop h/b for Andego for the Appellant
Koech for the Respondent
Susan Nzioka – Court Assistant
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