' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E142 OF 2023
NEW ADATIA WHOLESALERS LTD………....………APPELLANT
VERSUS
EMMANUEL BARASA WANJALA………….….….RESPONDENT
( An Appeal from the judgment and decree of Hon. J.O.Manasse (RM) delivered on 5/10/2023 in Sirisia SPMCC No. E057 of 2022)
JUDGMENT
This appeal is against the judgment delivered on 5th October 2023, which was entered in favour of the plaintiff (now respondent), Emmanuel Barasa Wanjala, against the defendant (now appellant), New Adatia Wholesalers Ltd, for injuries sustained in a road traffic accident that occurred on 29th July 2022 at Lusaka Road junction along the Kanduyi-Bungoma highway.
THE EVIDENCE
The respondent testified that on the 29.7.2022, he was riding a motorcycle from Kanduyi towards Bungoma Town, when he was hit by motor vehicle KCW 212Z, belonging to and driven on behalf of the appellant, which was emerging from Lusaka Road. The appellant''s vehicle, he alleged, entered the highway without yielding, thereby causing the accident. He sustained injuries and was treated at Bungoma County Referral Hospital. A police abstract dated 30.07.2022 and OB report placed blame on the appellant''s driver. Pw2 No. 81576 P. C Woman Jackline Were blamed the appellant’s driver for reasons that the defendant’s driver was joining the road to town and he was to give way to the motorcycle at the junction.
The appellant denied liability in its defence. David Simiyu Nyongesa testified that on the 29/7/2022, at around 11.30am, he was driving a vehicle registration number KCW 212Z along the Kanduyi-Bungoma road and was in his lawful lane, the left lane from Bungoma general directions towards Kanduyi general directions at a speed of 20 km/hr. He indicated with the intention of joining the feeder road heading to Bukembe road as he joined Lusaka junction, a motorcycle emerged at high speed and the rider rammed into his left rear wheel. He stopped immediately and rushed the driver to the hospital, and later reported the accident at Bungoma police station. He blamed the rider of the motorcycle for emerging in high speed and ramming into his vehicle.
GROUNDS OF APPEAL
THAT the learned trial magistrate erred in law and fact by in holding the appellant 100% liable or at all in negligence in view of the evidence on record.
THAT the learned trial magistrate erred in law and fact by failing to dismiss the respondent’s claim against the appellant in view of the evidence on record.
THAT the learned trial magistrate erred in law and fact in failing to consider the submissions by the appellant on both the issue of liability and quantum.
THAT the learned trial magistrate erred in law and fact in using the wrong principles in the assessment of damages, thereby arriving at an erroneous decision.
THAT the learned trial magistrate erred in law and fact by failing to take into consideration and/or be guided by relevant authorities and/or precedents with comparable injuries to the ones sustained by the respondent, thereby awarding at an excessive amount to general damages.
THAT the learned trial magistrate erred in law and fact by awarding the respondent Kshs. 700,000/= as general damages which is inordinately high , in view of the evidence on record.
The appellant seeks that the judgment of the trial court be set aside and that the appeal be allowed. That the Honorable Court be pleased to set aside the subordinate court’s judgment on liability and substitute the same with an order dismissing the respondent’s case with costs to the appellant. The Honorable Court be pleased to set aside the general damages awarded to the respondent herein and re-assess the same downwards and that the costs of the appeal be awarded to the appellant.
ANALYSIS AND DETERMINATION.
I have read the rival submissions filed by the parties together with the evidence adduced at the hearing and authorities cited by the parties.
The issues for determination are whether the trial court erred in holding the appellant 100% liable and whether the award of damages was excessive. On the issue of liability, the trial court in his judgment failed to provide reasons for holding the defendant 100% liable. The evidence regarding the accident is only from the respondent and appellant. Pw2, the officer who produced the police abstract, testified that the appellant was to blame as he failed to give way. Neither party was charged, nor was any sketch plan produced to indicate the position of the vehicle and the motorcycle after the accident. Either version could be correct. In the case of ..... it was held that if it is not clear who is to blame for the accident, then the parties will share liability, hence I set aside the trial court’s finding of 100% liability with an apportionment of liability at 50:50.
On the issue of quantum, the trial court awarded general damages of Kshs. 700,000/-. The appellant claims that the award is excessive, while the respondents assert that it is not. The injuries suffered by the plaintiff are undisputed; he sustained a head injury with brief loss of consciousness, several soft tissue injuries, traumatic avulsions of two upper left incisors, and loosening of two molar teeth. I note that during the hearing, the respondent testified that he had healed well. The appellant has suggested an award of Kshs. 250,000 to 300000. I have considered the cases cited; the award indicated by the appellant is quite low for the injuries sustained. Conversely, the cases cited by the respondent involved plaintiffs who suffered more serious injuries. In Coast Motorcycles Watu Credit v SJM (Minor Suing Through Father & Next Friend DMC) (Civil Appeal 053 of 2022) [2023] KEHC 24917 (KLR) (24 October 2023) (Judgment), the respondent in this case lost her two lower teeth, and the court awarded general damages of Kshs. 500,000. In Noreen v Beatha [2025] KEHC 1373 (KLR), the appellant lost three teeth and was awarded Kshs. 550,000. In Joseph Muita Nthis v Fredrick Moses M. Katuva [2017]eKLR, the plaintiff sustained injuries to the face, loose teeth (41, 41,31, and 32), loss of two teeth, as well as blunt chest and back injuries, and was awarded Kshs. 400,000. Considering the awards in the cases cited, I find that the award of Kshs. 700000 is excessive. I set aside the said award and substitute it with an award of Kshs. 500,000. The appellant did not challenge the award on special damages and future medical expenses.
Final orders; Liability is 50:50 and the award on general damages is set aside and substituted with an award of Kshs. 500,000/-. Each party to bear its own cost. Orders accordingly.
Dated, Signed and Delivered at Bungoma on the 8 th October 2025.
R.E.OUGO
In the presence of :
Appellant - Absent
Mr. Shikhu - For the Respondent
Wilkister - C/A
'
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E142 OF 2023
NEW ADATIA WHOLESALERS LTD………....………APPELLANT
VERSUS
EMMANUEL BARASA WANJALA………….….….RESPONDENT
( An Appeal from the judgment and decree of Hon. J.O.Manasse (RM) delivered on 5/10/2023 in Sirisia SPMCC No. E057 of 2022)
JUDGMENT
This appeal is against the judgment delivered on 5th October 2023, which was entered in favour of the plaintiff (now respondent), Emmanuel Barasa Wanjala, against the defendant (now appellant), New Adatia Wholesalers Ltd, for injuries sustained in a road traffic accident that occurred on 29th July 2022 at Lusaka Road junction along the Kanduyi-Bungoma highway.
THE EVIDENCE
The respondent testified that on the 29.7.2022, he was riding a motorcycle from Kanduyi towards Bungoma Town, when he was hit by motor vehicle KCW 212Z, belonging to and driven on behalf of the appellant, which was emerging from Lusaka Road. The appellant''s vehicle, he alleged, entered the highway without yielding, thereby causing the accident. He sustained injuries and was treated at Bungoma County Referral Hospital. A police abstract dated 30.07.2022 and OB report placed blame on the appellant''s driver. Pw2 No. 81576 P. C Woman Jackline Were blamed the appellant’s driver for reasons that the defendant’s driver was joining the road to town and he was to give way to the motorcycle at the junction.
The appellant denied liability in its defence. David Simiyu Nyongesa testified that on the 29/7/2022, at around 11.30am, he was driving a vehicle registration number KCW 212Z along the Kanduyi-Bungoma road and was in his lawful lane, the left lane from Bungoma general directions towards Kanduyi general directions at a speed of 20 km/hr. He indicated with the intention of joining the feeder road heading to Bukembe road as he joined Lusaka junction, a motorcycle emerged at high speed and the rider rammed into his left rear wheel. He stopped immediately and rushed the driver to the hospital, and later reported the accident at Bungoma police station. He blamed the rider of the motorcycle for emerging in high speed and ramming into his vehicle.
GROUNDS OF APPEAL
THAT the learned trial magistrate erred in law and fact by in holding the appellant 100% liable or at all in negligence in view of the evidence on record.
THAT the learned trial magistrate erred in law and fact by failing to dismiss the respondent’s claim against the appellant in view of the evidence on record.
THAT the learned trial magistrate erred in law and fact in failing to consider the submissions by the appellant on both the issue of liability and quantum.
THAT the learned trial magistrate erred in law and fact in using the wrong principles in the assessment of damages, thereby arriving at an erroneous decision.
THAT the learned trial magistrate erred in law and fact by failing to take into consideration and/or be guided by relevant authorities and/or precedents with comparable injuries to the ones sustained by the respondent, thereby awarding at an excessive amount to general damages.
THAT the learned trial magistrate erred in law and fact by awarding the respondent Kshs. 700,000/= as general damages which is inordinately high , in view of the evidence on record.
The appellant seeks that the judgment of the trial court be set aside and that the appeal be allowed. That the Honorable Court be pleased to set aside the subordinate court’s judgment on liability and substitute the same with an order dismissing the respondent’s case with costs to the appellant. The Honorable Court be pleased to set aside the general damages awarded to the respondent herein and re-assess the same downwards and that the costs of the appeal be awarded to the appellant.
ANALYSIS AND DETERMINATION.
I have read the rival submissions filed by the parties together with the evidence adduced at the hearing and authorities cited by the parties.
The issues for determination are whether the trial court erred in holding the appellant 100% liable and whether the award of damages was excessive. On the issue of liability, the trial court in his judgment failed to provide reasons for holding the defendant 100% liable. The evidence regarding the accident is only from the respondent and appellant. Pw2, the officer who produced the police abstract, testified that the appellant was to blame as he failed to give way. Neither party was charged, nor was any sketch plan produced to indicate the position of the vehicle and the motorcycle after the accident. Either version could be correct. In the case of ..... it was held that if it is not clear who is to blame for the accident, then the parties will share liability, hence I set aside the trial court’s finding of 100% liability with an apportionment of liability at 50:50.
On the issue of quantum, the trial court awarded general damages of Kshs. 700,000/-. The appellant claims that the award is excessive, while the respondents assert that it is not. The injuries suffered by the plaintiff are undisputed; he sustained a head injury with brief loss of consciousness, several soft tissue injuries, traumatic avulsions of two upper left incisors, and loosening of two molar teeth. I note that during the hearing, the respondent testified that he had healed well. The appellant has suggested an award of Kshs. 250,000 to 300000. I have considered the cases cited; the award indicated by the appellant is quite low for the injuries sustained. Conversely, the cases cited by the respondent involved plaintiffs who suffered more serious injuries. In Coast Motorcycles Watu Credit v SJM (Minor Suing Through Father & Next Friend DMC) (Civil Appeal 053 of 2022) [2023] KEHC 24917 (KLR) (24 October 2023) (Judgment), the respondent in this case lost her two lower teeth, and the court awarded general damages of Kshs. 500,000. In Noreen v Beatha [2025] KEHC 1373 (KLR), the appellant lost three teeth and was awarded Kshs. 550,000. In Joseph Muita Nthis v Fredrick Moses M. Katuva [2017]eKLR, the plaintiff sustained injuries to the face, loose teeth (41, 41,31, and 32), loss of two teeth, as well as blunt chest and back injuries, and was awarded Kshs. 400,000. Considering the awards in the cases cited, I find that the award of Kshs. 700000 is excessive. I set aside the said award and substitute it with an award of Kshs. 500,000. The appellant did not challenge the award on special damages and future medical expenses.
Final orders; Liability is 50:50 and the award on general damages is set aside and substituted with an award of Kshs. 500,000/-. Each party to bear its own cost. Orders accordingly.
Dated, Signed and Delivered at Bungoma on the 8 th October 2025.
R.E.OUGO
In the presence of :
Appellant - Absent
Mr. Shikhu - For the Respondent
Wilkister - C/A
'