REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E115 OF 2025
ORINA OMBATI……………………………………1 st APPELLANT
JARED NYARANGO ORINA………………………2 nd APPELLANT
VERSUS
EZEKIEL NYABUTO NYANGWESO………………RESPONDENT
(Being an appeal from the Judgement and Decree of Hon. S.N.Abuya (CM) dated 27 th June, 2024 in Kisii MCCC/E871/2022)
JUDGEMENT
1. This appeal arises from the judgement and decree of Hon. S.N.Abuya (CM) dated 27 th June, 2024 in Kisii MCCC/E871/2022.
2. By a plaint dated 27 th October, 2022 the Respondent (Plaintiff in the trial court) sued the Appellants (Defendants in the trial court) for general and special damages for injuries sustained from an alleged road traffic accident that occurred on the 2 nd May, 2022 along Kisii-Kilgoris road involving motor-vehicle registration number KCT 910V and the Respondent’s motorcycle registration number KMCY 115 G.
3. The Respondent blamed the occurrence of the said accident on the negligence of the Appellant and pleaded to have sustained fractures to the right 4 th and 5 th metatarsal bone, dis-articulation of the small right toe, degloving injury of the right foot, lacerations on the right shoulder, lacerations on the right hand, lacerations on the left hand, blunt trauma to the right knee and lacerations to the right leg.
4. The Respondent also pleaded an inability to carry out daily activities due to pain in the chest, ugly scars, pain on the chest and pain on the right foot. That he would need to undergo physiotherapy and occupational therapy in addition to surgery on the fractured bone which would have to be corrected with metal implants at an estimated cost of Ksh. 75, 000/= which the respondent would incur in future medical expenses.
5. The Appellants filed a statement of defence dated 11 th January, 2023 denying ownership of motor-vehicle KCT 910V and generally denied the occurrence of the accident or their alleged negligence and in the alternative blamed the occurrence of the said accident on the negligence of the Respondent.
6. The trial court found the appellants wholly liable for causing the accident and awarded the respondent general damages of Ksh. 800, 000/= and future medical expenses of Ksh. 75, 000/=. The respondent was also awarded interests on the damages and costs of the suit.
The Appeal
7. Being dissatisfied and aggrieved by the judgement of the trial court, the Appellants preferred this appeal on grounds which can be summarized broadly into two;
(a) Liability, and
(b) Assessment of damages.
8. The appellants are aggrieved that no liability was apportioned on the part of the respondent and that the award of general damages of Ksh. 875, 000/= was a wrong finding considering the nature of the injuries sustained by the Respondent and that the assessment of general damages was excessively high in the circumstances.
9. The Appellants are seeking to have the appeal allowed and the judgement of the trial court set aside in its entirety with costs to the Appellant. Alternatively, the appellants are seeking orders to have the damages awarded re-assessed.
10. Directions were given that the appeal be canvassed by way of written submissions with the Appellants filing written submissions dated 24 th April, 2026 and the Respondent’s filing written submissions dated 20 th April, 2026 .
Appellant’s Submissions
11. Counsel for the Appellants submits that on liability, the Respondent called a police officer who testified as PW2 and stated that the Respondent’s motor cycle brushed with the appellants’ motor vehicle’s passenger sliding door leading to injuries sustained by the Respondent. It is submitted for the appellants that the relevant traffic case was still pending further investigations and that none of the parties had been found blameworthy.
12. It is submitted that the Respondent testified as PW1 but failed to produce his driving license and that his qualifications to ride motorcycle registration number KMCY 155 G could not be ascertained as required under the traffic rules and regulations. It is also submitted that the respondent could not tell exactly how the accident occurred and that he did not call any other witness to corroborate his story.
13. Counsel for the Appellants submits that the police officer called by the respondent never mentioned that the Appellants’ motor-vehicle was to blame for the accident and that there was no evidence to show that the Appellants’ vehicle contributed to the occurrence of the said accident. The police officer was also faulted for his failure to produce the sketch plan of the scene of the accident showing the point of impact.
14. It is submitted that the inconsistency in the testimonies of both PW1 and PW2 casts doubts on the happenings of that day of the accident and that the trial court’s finding that the appellants were wholly to blame for the accident was erroneous and unsupported by any evidence on record. It is submitted that there was contradictory evidence regarding the manner in which the accident occurred.
15. Counsel submits that in addition to the above, the defence called DW1, police Corporal Saoke who testified that he could not tell whether it was the left or right sliding door which hit the Respondent and that the traffic case was still pending under investigations. It is submitted that there is no evidence suggesting that the Appellants’ driver was overtaking the respondent but that the driver reports being hit by a motor cycle registration KMCY 155G whose rider was the respondent who was brushed by sliding passenger door.
16. Counsel for the Appellants submits that the Occurrence Book indicated that the rider who is the Respondent was overtaking when the collision occurred and that the police abstract indicates that the matter is pending under investigation.
17. It is submitted that the appellants’ driver testified as DWI and blamed the Respondent for the accident who is said to have emerged onto the road from a feeder road near the conductor’s door and hit the door of the motor vehicle thereby causing the motorcycle to crash. Reference was made to the fact that the appellants’ driver was never charged with any traffic offence. Counsel submitted that the respondent failed to proof his case and the appellants had no duty to assist him. Reliance was placed on the case of Michael Wanjohi Mathenge V Lydiah Nyaguthii Agatha & Another 2[2007] EKLR to buttress the point.
18. Counsel submits that in the case of Robert Collins Murimi v Benson Njihia Kamau (Suing as the legal representative of the estate of Veronica Nunu Jihia-Deceased) (2017) eKLR , the investigations carried out by the police appeared to have been inconclusive, that is, the police abstract which was produced as an exhibit reflected that the case is pending under investigation. The court apportioned liability at 50:50 in view of the fact that both parties equally contributed to the accident as the said abstract did not point out who was to blame. Counsel also cited the case of Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa (2019) eKLR in support of this submission.
19. On quantum, counsel for the Appellants submits that the Respondent availed treatment notes and a medical report prepared by Dr Morebu. According to the notes, the Respondent presented a history of soft tissue injuries with right 4th and 5th metatarsal bone fractures and degloving injury.
20. It is submitted that Dr Morebu testified that the respondent will require Kshs. 25,000/ = to correct the two fractures and assessed disability at 10% but that he failed to attach any evidence to support his assertions. That the doctor further failed to attach any supporting documents to proof the plaintiff's allegation of having a missing small toe as per Workers Injury Benefits Act guidelines to support his finding on disability.
21. Counsel submits that while Dr Morebu's report states that the approximated future medical expenses to fix the fractures with metal implants is Kshs. 75,000/ = , on cross examination he testified that the expected costs shall be approximately Kshs. 25,000/= .
22. It is submitted that, Dr Steve Ochieng testified and produced his medical report (see D. Exhibit 2) on behalf of the Appellants. That he disputed the need for future surgery and stated that there are no future costs of treatment as alleged by the plaintiff's doctor. It was his testimony that the Respondent had normal movement of the right ankle, right foot toe and therefore it was his opinion that the Respondent had already healed and did not require any surgery. It is also submitted that he referred the Respondent to a radiological examination in order to assess if the fractures had healed but that the Respondent failed to show up.
23. Lastly, counsel for the Appellant, cited the cases of Wakim Sodas Limited vs. Sammy Arito (2017) eKLR and Amritlal S. Shah Wholesalers Ltd & another v Joshua Ekeno (2012) eKLR in support of his submission that the trial court erred in law and fact by arriving at an erroneous estimate of damages considering the injuries suffered by the respondent said to comprise severe soft tissue injuries and fractures expected to heal with only 10% permanent disability expected.
Respondent’s Submissions
24. Counsel for the Respondent submits that when the accident occurred the appellants’ driver was closely overtaking the Respondent who was riding his motorcycle and that his matatu’s left sliding door brushed the motorcycle and violently knocked down the respondent.
25. Further, counsel submitted that the two police officers who testified more or less corroborated the respondent’s testimony as against the appellants’ driver who alleged that the respondent suddenly emerged onto the main road from a feeder road thereby causing the accident.
26. It is submitted that the respondent suffered severe bodily injuries described by his doctor as “grievous harm”.
27. Counsel submitted that the appellant’s driver (DW1) admitted that he was overtaking the respondent’s motorcycle and never left enough space and, in the process, knocked the cyclist with his passenger door and fled the scene.
28. Reference is made to the testimonies of PW 2, PC Moses Kasera, and DW1 as confirming that the appellants’ driver fled the scene due to fear of motorcycle riders. Citing Section 119 of the Evidence Act, the respondent submits that the flight from the scene was suspect and suggestive of guilt on the part of the driver.
29. On quantum, Counsel for the Respondent submits that the court considered the evidence adduced by the Respondent and documents produced in support of the respondent’s case. Counsel relied on the cases of Mbogo & Another vs Shah,[1968] EA, Butler vs Butler Nairobi Civil Appeal No.49 of 1983 [1984] KLR, and Mariga vs Musila Nairobi Civil Appeal No.66 of 1982 & 88 of 1983 (consolidated) [1984] KLR 19 and asserted that assessment of damages is more like an exercise of discretion by the trial Judge and that an appellate court should be slow to reverse the trial Judge unless he has either acted on wrong principles; or awarded so excessive or so little damages that no reasonable court would or he has taken into consideration matters he ought not to have considered: or not taken into consideration matters he ought to have considered, and in the result, arrived at a wrong decision. Counsel submits there are no such misdirection in this instant case.
Issues for determination
30. Having considered the record of appeal, the memorandum of appeal and the submissions by both parties, the following issues arise for determination;
i. Whether the trial court erred in apportioning 100% liability on the Appellants;
ii. Whether there was proper assessment of the quantum of damages payable to the respondent.
Analysis & Determination
31. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
i) Whether the trial court erred in apportioning 100% liability on the Appellants
32. As was held in the case of Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991]2 KAR 258
There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.
33. The burden accordingly lay on the Respondent to prove, on a balance of probabilities, both the occurrence of the accident and negligence on the part of the person driving the offending vehicle. The Evidence Act, Section 107 provides as follows;
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
34. The Appellants’ main argument against the trial court’s apportionment of liability is that the police evidence was inconclusive on who was responsible for causing the accident and that the manner in which the accident occurred was contested.
35. However, DW1's own testimony under cross-examination is that the Appellant's driver conceded that the police OB entry recorded him as having been overtaking the Respondent's motorcycle a bit too closely, and that it was in the course of that overtaking maneuver that the matatu's sliding door struck the motorcycle.
36. The admission by the Appellants’ driver in his own testimony before the court corroborates the Respondent's pleaded case and the substance of PW2 and DW1 (Corporal Saoke)'s evidence that the collision occurred as the appellant’s vehicle was overtaking the respondent’s motorcycle.
37. In the present circumstances where the Appellant’s own witness made an admission that support the Respondent's version of events, that evidence is properly preferred, since a party is not expected to concede a point against their own interest unless it is true. It was also negligent, on the part of the appellants’ driver, to leave the sliding door open when his vehicle was in motion. His passengers and passersby were in danger because of this act.
38. This finding is reinforced by the evidence that has not been substantially rebutted that the Appellants’ driver fled the scene of the accident. The Evidence Act, Section 119 provides that:
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
39. Fleeing from the scene of a road accident, in the absence of a satisfactory explanation, is conduct for which an adverse inference may be made against the fleeing party. It presupposes that the fleeing party was on the wrong and the explanation that the driver sensed danger from the boda boda riders reinforces rather than dislodges that inference.
40. This court is not persuaded that the lack of a valid driving license by the Respondent warrants disturbing the trial court’s finding on liability. It is apparent that the respondent had not carried his license at the time of his testimony but not that he had none. This court is persuaded by the finding of the court in Elgon View College Limited v Samuel [2025] KEHC 3034 (KLR) where the court held;
“The impact of the motorcycle being uninsured or the Respondent not having a valid driving license was not conceptualized, problematized, and contextualized. What is it that the lack of the documents did to the accident? Did they cause the motor vehicle to veer off? These were not unnecessary, but there must be a causal link to the causation. Without contributory negligence being pleaded and proved, the questions became irrelevant to the matter before the court .”
41. Similarly, the court in Mukhwana v Republic [2023] KEHC 22485 (KLR) found that:
The Appellant’s Counsel submitted that the trial Magistrate ignored the inconsistencies in the testimony of the prosecution witnesses. He alleged for instance, that PW1 who stated that he was a passenger on the motorcycle that the deceased was riding had no proof that the deceased was a licensed rider. My finding on this point is that the Appellant did not in any way even attempt to demonstrate how the lack of a license by the deceased, even if true, contributed to the accident.
42. Accordingly, I find that the trial court did not err in finding the Appellants wholly liable for the occurrence of the accident. That finding is affirmed.
ii) Whether there was proper assessment of the quantum of damages payable to the respondent.
43. The principles guiding an appellate court in determining whether to interfere with an award of damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
44. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403 , where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
45. The Respondent's proved injuries comprise fractures of the right 4th and 5th metatarsal bones, disarticulation of the small right toe, a degloving injury of the right foot, lacerations to the right shoulder and both hands, blunt trauma to the right knee, and lacerations to the right leg. The second medical examination shows that the Respondent has substantially healed and would not require future medication.
46. The general principle in assessing quantum is that comparable injuries should attract comparable awards. In that regard the comparable authority is Simba v Langat [2024] KEHC 2110 (KLR) where the injuries were multiple fractures of the metatarsals of the right foot, total amputation of the 4th and 5th metatarsal with a large excavating wound on the dorsum of the right foot, and partial amputation of the 3rd toe with loss of the terminal phalanx, together with multiple skin bruises on the right hand. The trial court in that matter awarded Kshs. 800,000/= in general damages, and on appeal the High Court declined to interfere with that figure, finding it not so inordinately high as to amount to an erroneous estimate, notwithstanding that liability was revised from 100% to a 70:30 apportionment.
47. The injuries proved in the present case are, if anything, more extensive than those in Simba (supra), given the additional lacerations to the shoulder, both hands and the leg, and the blunt trauma to the knee, over and above a comparable foot injury involving fracture and digital disarticulation. On this comparator, the trial court's award of Kshs. 800,000/= cannot be said to represent an inordinately high or erroneous estimate. I decline to interfere with it.
48. This court has also considered the Appellant's reliance on Wakim Sodas Limited v. Sammy Arito [2017] eKLR and Amritlal S. Shah Wholesalers Ltd & another v Joshua Ekeno [2012] eKLR . Neither was accompanied by particulars of the injuries considered in those authorities sufficient to allow this court to treat them as closer comparators, and I am not persuaded that they displace the latter.
49. The trial court declined to award special damages but awarded the pleaded future medical expenses of Kshs. 75,000/= . Dr Morebu's medical report put the cost of surgical correction of the fractures, with metal implants, at Kshs. 75,000/= . However, the Respondent's own expert conceded on cross-examination that the fractures can be fixed at a reduced cost of Kshs. 25,000/= . This internal inconsistency in the Respondent's own medical evidence, without explanation, materially weakens the reliability of the claim for future surgical intervention.
50. That weakness is compounded by the evidence of DW3, Dr Steve Ochieng, who testified for the Appellants, who found the Respondent to have normal movement of the right ankle and foot toes and was of the opinion that the Respondent had already healed and required no additional surgery. He told the court that he had referred the Respondent for a radiological examination to verify the state of healing, an examination the Respondent did not attend. A claimant who declines to submit to a further examination proposed to verify a disputed claim for future treatment cannot complain if that claim is treated with caution.
51. Considering the above rival medical evidence, this court is not persuaded that there was any justification for the award for future medical treatment. I therefore set aside the award of Ksh. 75,000/= by the trial court for future medical expenses.
52. No specific evidentiary basis for a distinct award of special damages has been placed before this court beyond what the trial court already considered and declined. The trial court found that the special damages as pleaded were not proved because, even though the Respondent marked his receipts for identification, the same were not produced as exhibits.
53. The upshot is that this appeal only succeeds to a limited extent as regards the award of Ksh. 75, 000/= for future medical expenses which I have set aside.
54. The respondent shall have the costs of the appeal which shall be borne by the appellants.
Judgment read, dated and delivered virtually at Bungoma High Court this 17 th day of September, 2026
R. K.Koech
JUDGE
In the presence of:
Ms. Munji appearing virtually for the Appellants
Mr. Migiro appearing virtually for the Respondent
Mr. Enock Wakhu, C. A.
Right of appeal within 30 days, stay of execution for 30 days.
Page 1 KISII HCCA/E115/2025
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E115 OF 2025
ORINA OMBATI……………………………………1 st APPELLANT
JARED NYARANGO ORINA………………………2 nd APPELLANT
VERSUS
EZEKIEL NYABUTO NYANGWESO………………RESPONDENT
(Being an appeal from the Judgement and Decree of Hon. S.N.Abuya (CM) dated 27 th June, 2024 in Kisii MCCC/E871/2022)
JUDGEMENT
1. This appeal arises from the judgement and decree of Hon. S.N.Abuya (CM) dated 27 th June, 2024 in Kisii MCCC/E871/2022.
2. By a plaint dated 27 th October, 2022 the Respondent (Plaintiff in the trial court) sued the Appellants (Defendants in the trial court) for general and special damages for injuries sustained from an alleged road traffic accident that occurred on the 2 nd May, 2022 along Kisii-Kilgoris road involving motor-vehicle registration number KCT 910V and the Respondent’s motorcycle registration number KMCY 115 G.
3. The Respondent blamed the occurrence of the said accident on the negligence of the Appellant and pleaded to have sustained fractures to the right 4 th and 5 th metatarsal bone, dis-articulation of the small right toe, degloving injury of the right foot, lacerations on the right shoulder, lacerations on the right hand, lacerations on the left hand, blunt trauma to the right knee and lacerations to the right leg.
4. The Respondent also pleaded an inability to carry out daily activities due to pain in the chest, ugly scars, pain on the chest and pain on the right foot. That he would need to undergo physiotherapy and occupational therapy in addition to surgery on the fractured bone which would have to be corrected with metal implants at an estimated cost of Ksh. 75, 000/= which the respondent would incur in future medical expenses.
5. The Appellants filed a statement of defence dated 11 th January, 2023 denying ownership of motor-vehicle KCT 910V and generally denied the occurrence of the accident or their alleged negligence and in the alternative blamed the occurrence of the said accident on the negligence of the Respondent.
6. The trial court found the appellants wholly liable for causing the accident and awarded the respondent general damages of Ksh. 800, 000/= and future medical expenses of Ksh. 75, 000/=. The respondent was also awarded interests on the damages and costs of the suit.
The Appeal
7. Being dissatisfied and aggrieved by the judgement of the trial court, the Appellants preferred this appeal on grounds which can be summarized broadly into two;
(a) Liability, and
(b) Assessment of damages.
8. The appellants are aggrieved that no liability was apportioned on the part of the respondent and that the award of general damages of Ksh. 875, 000/= was a wrong finding considering the nature of the injuries sustained by the Respondent and that the assessment of general damages was excessively high in the circumstances.
9. The Appellants are seeking to have the appeal allowed and the judgement of the trial court set aside in its entirety with costs to the Appellant. Alternatively, the appellants are seeking orders to have the damages awarded re-assessed.
10. Directions were given that the appeal be canvassed by way of written submissions with the Appellants filing written submissions dated 24 th April, 2026 and the Respondent’s filing written submissions dated 20 th April, 2026 .
Appellant’s Submissions
11. Counsel for the Appellants submits that on liability, the Respondent called a police officer who testified as PW2 and stated that the Respondent’s motor cycle brushed with the appellants’ motor vehicle’s passenger sliding door leading to injuries sustained by the Respondent. It is submitted for the appellants that the relevant traffic case was still pending further investigations and that none of the parties had been found blameworthy.
12. It is submitted that the Respondent testified as PW1 but failed to produce his driving license and that his qualifications to ride motorcycle registration number KMCY 155 G could not be ascertained as required under the traffic rules and regulations. It is also submitted that the respondent could not tell exactly how the accident occurred and that he did not call any other witness to corroborate his story.
13. Counsel for the Appellants submits that the police officer called by the respondent never mentioned that the Appellants’ motor-vehicle was to blame for the accident and that there was no evidence to show that the Appellants’ vehicle contributed to the occurrence of the said accident. The police officer was also faulted for his failure to produce the sketch plan of the scene of the accident showing the point of impact.
14. It is submitted that the inconsistency in the testimonies of both PW1 and PW2 casts doubts on the happenings of that day of the accident and that the trial court’s finding that the appellants were wholly to blame for the accident was erroneous and unsupported by any evidence on record. It is submitted that there was contradictory evidence regarding the manner in which the accident occurred.
15. Counsel submits that in addition to the above, the defence called DW1, police Corporal Saoke who testified that he could not tell whether it was the left or right sliding door which hit the Respondent and that the traffic case was still pending under investigations. It is submitted that there is no evidence suggesting that the Appellants’ driver was overtaking the respondent but that the driver reports being hit by a motor cycle registration KMCY 155G whose rider was the respondent who was brushed by sliding passenger door.
16. Counsel for the Appellants submits that the Occurrence Book indicated that the rider who is the Respondent was overtaking when the collision occurred and that the police abstract indicates that the matter is pending under investigation.
17. It is submitted that the appellants’ driver testified as DWI and blamed the Respondent for the accident who is said to have emerged onto the road from a feeder road near the conductor’s door and hit the door of the motor vehicle thereby causing the motorcycle to crash. Reference was made to the fact that the appellants’ driver was never charged with any traffic offence. Counsel submitted that the respondent failed to proof his case and the appellants had no duty to assist him. Reliance was placed on the case of Michael Wanjohi Mathenge V Lydiah Nyaguthii Agatha & Another 2[2007] EKLR to buttress the point.
18. Counsel submits that in the case of Robert Collins Murimi v Benson Njihia Kamau (Suing as the legal representative of the estate of Veronica Nunu Jihia-Deceased) (2017) eKLR , the investigations carried out by the police appeared to have been inconclusive, that is, the police abstract which was produced as an exhibit reflected that the case is pending under investigation. The court apportioned liability at 50:50 in view of the fact that both parties equally contributed to the accident as the said abstract did not point out who was to blame. Counsel also cited the case of Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa (2019) eKLR in support of this submission.
19. On quantum, counsel for the Appellants submits that the Respondent availed treatment notes and a medical report prepared by Dr Morebu. According to the notes, the Respondent presented a history of soft tissue injuries with right 4th and 5th metatarsal bone fractures and degloving injury.
20. It is submitted that Dr Morebu testified that the respondent will require Kshs. 25,000/ = to correct the two fractures and assessed disability at 10% but that he failed to attach any evidence to support his assertions. That the doctor further failed to attach any supporting documents to proof the plaintiff's allegation of having a missing small toe as per Workers Injury Benefits Act guidelines to support his finding on disability.
21. Counsel submits that while Dr Morebu's report states that the approximated future medical expenses to fix the fractures with metal implants is Kshs. 75,000/ = , on cross examination he testified that the expected costs shall be approximately Kshs. 25,000/= .
22. It is submitted that, Dr Steve Ochieng testified and produced his medical report (see D. Exhibit 2) on behalf of the Appellants. That he disputed the need for future surgery and stated that there are no future costs of treatment as alleged by the plaintiff's doctor. It was his testimony that the Respondent had normal movement of the right ankle, right foot toe and therefore it was his opinion that the Respondent had already healed and did not require any surgery. It is also submitted that he referred the Respondent to a radiological examination in order to assess if the fractures had healed but that the Respondent failed to show up.
23. Lastly, counsel for the Appellant, cited the cases of Wakim Sodas Limited vs. Sammy Arito (2017) eKLR and Amritlal S. Shah Wholesalers Ltd & another v Joshua Ekeno (2012) eKLR in support of his submission that the trial court erred in law and fact by arriving at an erroneous estimate of damages considering the injuries suffered by the respondent said to comprise severe soft tissue injuries and fractures expected to heal with only 10% permanent disability expected.
Respondent’s Submissions
24. Counsel for the Respondent submits that when the accident occurred the appellants’ driver was closely overtaking the Respondent who was riding his motorcycle and that his matatu’s left sliding door brushed the motorcycle and violently knocked down the respondent.
25. Further, counsel submitted that the two police officers who testified more or less corroborated the respondent’s testimony as against the appellants’ driver who alleged that the respondent suddenly emerged onto the main road from a feeder road thereby causing the accident.
26. It is submitted that the respondent suffered severe bodily injuries described by his doctor as “grievous harm”.
27. Counsel submitted that the appellant’s driver (DW1) admitted that he was overtaking the respondent’s motorcycle and never left enough space and, in the process, knocked the cyclist with his passenger door and fled the scene.
28. Reference is made to the testimonies of PW 2, PC Moses Kasera, and DW1 as confirming that the appellants’ driver fled the scene due to fear of motorcycle riders. Citing Section 119 of the Evidence Act, the respondent submits that the flight from the scene was suspect and suggestive of guilt on the part of the driver.
29. On quantum, Counsel for the Respondent submits that the court considered the evidence adduced by the Respondent and documents produced in support of the respondent’s case. Counsel relied on the cases of Mbogo & Another vs Shah,[1968] EA, Butler vs Butler Nairobi Civil Appeal No.49 of 1983 [1984] KLR, and Mariga vs Musila Nairobi Civil Appeal No.66 of 1982 & 88 of 1983 (consolidated) [1984] KLR 19 and asserted that assessment of damages is more like an exercise of discretion by the trial Judge and that an appellate court should be slow to reverse the trial Judge unless he has either acted on wrong principles; or awarded so excessive or so little damages that no reasonable court would or he has taken into consideration matters he ought not to have considered: or not taken into consideration matters he ought to have considered, and in the result, arrived at a wrong decision. Counsel submits there are no such misdirection in this instant case.
Issues for determination
30. Having considered the record of appeal, the memorandum of appeal and the submissions by both parties, the following issues arise for determination;
i. Whether the trial court erred in apportioning 100% liability on the Appellants;
ii. Whether there was proper assessment of the quantum of damages payable to the respondent.
Analysis & Determination
31. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
i) Whether the trial court erred in apportioning 100% liability on the Appellants
32. As was held in the case of Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991]2 KAR 258
There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.
33. The burden accordingly lay on the Respondent to prove, on a balance of probabilities, both the occurrence of the accident and negligence on the part of the person driving the offending vehicle. The Evidence Act, Section 107 provides as follows;
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
34. The Appellants’ main argument against the trial court’s apportionment of liability is that the police evidence was inconclusive on who was responsible for causing the accident and that the manner in which the accident occurred was contested.
35. However, DW1's own testimony under cross-examination is that the Appellant's driver conceded that the police OB entry recorded him as having been overtaking the Respondent's motorcycle a bit too closely, and that it was in the course of that overtaking maneuver that the matatu's sliding door struck the motorcycle.
36. The admission by the Appellants’ driver in his own testimony before the court corroborates the Respondent's pleaded case and the substance of PW2 and DW1 (Corporal Saoke)'s evidence that the collision occurred as the appellant’s vehicle was overtaking the respondent’s motorcycle.
37. In the present circumstances where the Appellant’s own witness made an admission that support the Respondent's version of events, that evidence is properly preferred, since a party is not expected to concede a point against their own interest unless it is true. It was also negligent, on the part of the appellants’ driver, to leave the sliding door open when his vehicle was in motion. His passengers and passersby were in danger because of this act.
38. This finding is reinforced by the evidence that has not been substantially rebutted that the Appellants’ driver fled the scene of the accident. The Evidence Act, Section 119 provides that:
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
39. Fleeing from the scene of a road accident, in the absence of a satisfactory explanation, is conduct for which an adverse inference may be made against the fleeing party. It presupposes that the fleeing party was on the wrong and the explanation that the driver sensed danger from the boda boda riders reinforces rather than dislodges that inference.
40. This court is not persuaded that the lack of a valid driving license by the Respondent warrants disturbing the trial court’s finding on liability. It is apparent that the respondent had not carried his license at the time of his testimony but not that he had none. This court is persuaded by the finding of the court in Elgon View College Limited v Samuel [2025] KEHC 3034 (KLR) where the court held;
“The impact of the motorcycle being uninsured or the Respondent not having a valid driving license was not conceptualized, problematized, and contextualized. What is it that the lack of the documents did to the accident? Did they cause the motor vehicle to veer off? These were not unnecessary, but there must be a causal link to the causation. Without contributory negligence being pleaded and proved, the questions became irrelevant to the matter before the court .”
41. Similarly, the court in Mukhwana v Republic [2023] KEHC 22485 (KLR) found that:
The Appellant’s Counsel submitted that the trial Magistrate ignored the inconsistencies in the testimony of the prosecution witnesses. He alleged for instance, that PW1 who stated that he was a passenger on the motorcycle that the deceased was riding had no proof that the deceased was a licensed rider. My finding on this point is that the Appellant did not in any way even attempt to demonstrate how the lack of a license by the deceased, even if true, contributed to the accident.
42. Accordingly, I find that the trial court did not err in finding the Appellants wholly liable for the occurrence of the accident. That finding is affirmed.
ii) Whether there was proper assessment of the quantum of damages payable to the respondent.
43. The principles guiding an appellate court in determining whether to interfere with an award of damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
44. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403 , where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
45. The Respondent's proved injuries comprise fractures of the right 4th and 5th metatarsal bones, disarticulation of the small right toe, a degloving injury of the right foot, lacerations to the right shoulder and both hands, blunt trauma to the right knee, and lacerations to the right leg. The second medical examination shows that the Respondent has substantially healed and would not require future medication.
46. The general principle in assessing quantum is that comparable injuries should attract comparable awards. In that regard the comparable authority is Simba v Langat [2024] KEHC 2110 (KLR) where the injuries were multiple fractures of the metatarsals of the right foot, total amputation of the 4th and 5th metatarsal with a large excavating wound on the dorsum of the right foot, and partial amputation of the 3rd toe with loss of the terminal phalanx, together with multiple skin bruises on the right hand. The trial court in that matter awarded Kshs. 800,000/= in general damages, and on appeal the High Court declined to interfere with that figure, finding it not so inordinately high as to amount to an erroneous estimate, notwithstanding that liability was revised from 100% to a 70:30 apportionment.
47. The injuries proved in the present case are, if anything, more extensive than those in Simba (supra), given the additional lacerations to the shoulder, both hands and the leg, and the blunt trauma to the knee, over and above a comparable foot injury involving fracture and digital disarticulation. On this comparator, the trial court's award of Kshs. 800,000/= cannot be said to represent an inordinately high or erroneous estimate. I decline to interfere with it.
48. This court has also considered the Appellant's reliance on Wakim Sodas Limited v. Sammy Arito [2017] eKLR and Amritlal S. Shah Wholesalers Ltd & another v Joshua Ekeno [2012] eKLR . Neither was accompanied by particulars of the injuries considered in those authorities sufficient to allow this court to treat them as closer comparators, and I am not persuaded that they displace the latter.
49. The trial court declined to award special damages but awarded the pleaded future medical expenses of Kshs. 75,000/= . Dr Morebu's medical report put the cost of surgical correction of the fractures, with metal implants, at Kshs. 75,000/= . However, the Respondent's own expert conceded on cross-examination that the fractures can be fixed at a reduced cost of Kshs. 25,000/= . This internal inconsistency in the Respondent's own medical evidence, without explanation, materially weakens the reliability of the claim for future surgical intervention.
50. That weakness is compounded by the evidence of DW3, Dr Steve Ochieng, who testified for the Appellants, who found the Respondent to have normal movement of the right ankle and foot toes and was of the opinion that the Respondent had already healed and required no additional surgery. He told the court that he had referred the Respondent for a radiological examination to verify the state of healing, an examination the Respondent did not attend. A claimant who declines to submit to a further examination proposed to verify a disputed claim for future treatment cannot complain if that claim is treated with caution.
51. Considering the above rival medical evidence, this court is not persuaded that there was any justification for the award for future medical treatment. I therefore set aside the award of Ksh. 75,000/= by the trial court for future medical expenses.
52. No specific evidentiary basis for a distinct award of special damages has been placed before this court beyond what the trial court already considered and declined. The trial court found that the special damages as pleaded were not proved because, even though the Respondent marked his receipts for identification, the same were not produced as exhibits.
53. The upshot is that this appeal only succeeds to a limited extent as regards the award of Ksh. 75, 000/= for future medical expenses which I have set aside.
54. The respondent shall have the costs of the appeal which shall be borne by the appellants.
Judgment read, dated and delivered virtually at Bungoma High Court this 17 th day of September, 2026
R. K.Koech
JUDGE
In the presence of:
Ms. Munji appearing virtually for the Appellants
Mr. Migiro appearing virtually for the Respondent
Mr. Enock Wakhu, C. A.
Right of appeal within 30 days, stay of execution for 30 days.
Page 1 KISII HCCA/E115/2025