[1] This appeal arises from Oyugis Magistrate’s Court Civil Case No. E002 of 2020: Erick Otieno Simba v Paul Orina & another . The respondent sued the appellants vide a Plaint dated the 28 th August 2020 claiming damages for injuries allegedly sustained by him in a road traffic accident which occurred on or about the 3 rd December 2019. It was alleged that the respondent was lawfully aboard motorcycle registration number KMEH 255H which was being ridden along Oyugis-Kisumu road, when at around Nyatindo area, the 2 nd appellant's driver, employee and/or agent so negligently and carelessly drove, managed and/or controlled motor vehicle registration number KCJ 815U that he caused it to violently knock down the respondent; thereby occasioning him pain, suffering and loss.
[2] The appellants entered appearance and filed their Statement of Defence dated the 3 rd day of November 2020 wherein they denied the allegations of facts contained in the Plaint; placed the Respondent herein to strict proof thereof and urged the Honorable Court to dismiss the respondent's case with costs. The suit proceeded to its logical conclusion and judgment was entered for the respondent as follows:
[a] liability 80:20
[b] General damages Kshs. 1,500,000
[c] Special damages Kshs. 52,050
Subtotal Kshs. 1,552,050
Less 20% contribution Kshs. 1,242,000
[3] Being dissatisfied with the trial Court's decision, the appellants filed the instant appeal on the following grounds:
[a] The learned trial magistrate erred in law and in fact in holding the defendants 80% liable when the plaintiff did not lead any evidence to prove his case on a balance of probability.
[b] The learned magistrate erred in law and fact by pronouncing judgement in favour of the plaintiff in the absence of an eye witness and/or any other concrete evidence in support thereof.
[c] The learned magistrate erred in law and fact by using the defendants ' evidence to aid the plaintiff's case contrary to the law that the burden of proof lay squarely on the part of the plaintiff.
[d] The learned magistrate erred in law and fact by ignoring the fact the plaintiff was an excess passenger in the motor cycle he was travelling on contrary to the Traffic Act and ought to have been held liable on that account.
[e] The learned magistrate erred in law and fact by invoking far-fetched evidence to breathe life to the plaintiff's case.
[f] The learned magistrate erred in law and fact by holding the defendants 80% when, to the contrary, the plaintiff ought to have been 100 0 % liable.
[g] The learned magistrate erred in law in awardinng excessive damages against the defendants.
[h] The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendants to net damages of Kshs. 1,242, 000/= without concrete documentary evidence.
[i] The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendants to special damages of Kshs. 52,500/= without concrete documentary evidence.
[j] The learned magistrate erred in law and fact in failing to appreciate that there could be no liability without fault.
[k] The learned magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis , thereby deriving an erroneous finding/conclusion on damages.
[l] The learned magistrate erred in law and fact in failing to appreciate that the plaintiff's pleadings and evidence tendered in support thereof was incapable of sustaining the excessive award of damages made by her.
[m] The learned trial magistrate erred in law and in fact in entering judgement in favour of the plaintiff against the defendant in spite of the plaintiff's failure to establish his case; especially on quantum.
[n] The learned trial magistrate erred in law and in fact in failing to appreciate the applicable legal principles.
[4] Consequently, the appellants prayed that their appeal be allowed and the finding and/or assessment of the learned magistrate on general damages be set aside and be substituted with a finding commensurate to the injuries sustained vis-à-vis the documents tendered in support thereof and judicial authorizes in similar cases.
[5] The appeal was disposed of through written submissions, pursuant to the directions given herein on 28 th November 2024. The appellants filed written submissions dated 14 th February 2025 and proposed two issues for determination; namely liability and quantum. They submitted that the burden of proof was on the respondent to prove his case before the lower court on a balance of probabilities. While they did not dispute that an accident occurred as alleged, they submitted that that of itself was not sufficient basis for them to be held liable. They relied on Stackpark Industries v James Mbithi , Nairobi Civil Appeal No. 152 of 2003 in support of this proposition.
[6] In particular, the appellants submitted that the respondent failed to demonstrate that:
[a] A causal link existed between their alleged negligence and the occurrence of the alleged accident.
[b] The alleged injuries were as a result of the alleged accident.
[c] The driver of the motor vehicle registration number KCJ 815U was charged with any traffic offence.
[7] They posited that the respondent authored his own misfortune by acting negligently and carelessly and without due regard to his own safety by cycling at an excessive speed in the circumstances and failing to keep proper lookout while cycling to avoid the alleged accident. In their view, no compelling evidence was placed before the lower court in support of the respondent's case. On the authority of Statpack Industries v James Mbithi , Nairobi Civil Appeal No. 152 of 2003, Muthuku Kiema v Kenya Cargo Handling Services Ltd [1991] KLR 464 , Japhet Nkubitu & Another v Regina Thirindi [1998] KECA 270 (KLR) and Cleophas Shimanyula v Mohamed Salat [2018] eKLR they urged the Court to allow the appeal on liability.
[8] On quantum, the appellants urged the Court to note the pleaded injuries, namely:
[a] Hairline fracture of the right parieto-temporal skull bruises
[b] Acute epidural haematoma of the right frontal temporal convexity with mass effects.
[c] Left frontal temporal contrecoup contusional haemorrhages.
[d] Bruises on the right parietal scalp
[e] Bruises on the right upper limb,
[f] Bruises on the left upper limb.
[g] Severe head injury with loss of consciousness
[9] They submitted that, based on the injuries aforestated, the lower court ought to have awarded the respondent Kshs. 350,000/= only as general damages for pain, suffering and loss of amenities. They relied on the following cases, among others:
[a] Joseph Musee v Julius Mboqo Muqi & 3 Others [20131 eKLR page 10 wherein it was held that damages for injuries sustained must be within consistent limits and should represent a fair compensation.
[b] Mbani v Ogalo [2024] KEHC 689 KLR , in which the Court upheld the decision of the trial court which had awarded Kshs. 350,000/= for damages similar injuries.
[c] Omondi v Anzofu (Civil Appeal 04 of 2020 [2024] KEHC 2675 (Judgement) in which an award of Kshs. 1,000,000/= was substituted on appeal with an award of Kshs. 300,000/=.
[d] Juliet Remunto Ondati v Gladys Mwende [2021] eKLR, the Court awarded Kshs. 350,000/= to the Plaintiff who had sustained much more serious injuries, including 65% disability.
[10] With regard to special damages, the appellants urged the court to award only the amount proved before the lower court by way of production of relevant receipts.
[11] The respondent relied on his written submissions dated 4 th December 2024. He was in agreement that the issues for determination relate to the following aspects:
[a] Liability
[b] Loss and damage suffered by the plaintiff
[c] Quantum of damages.
[12] The respondent submitted that by the time the trial court retreated to do its judgement, it was no longer in dispute that an accident did indeed occur as was pleaded and that as a direct consequence, the respondent sustained severe bodily injuries causing him much pain, suffering and loss. He further submitted that there was no dispute that the suit motor vehicle was the property of the appellants jointly and severally.
[13] On negligence and liability, the respondent reiterated his posturing that on the fateful day and time, he was a lawful pillion passenger on a motorcycle that was being ridden along the Oyugis-Kisumu road when the accident occurred. He made reference to the evidence of the 1 st appellant who testified before the lower court as DW1 and stated that he was so suddenly overtaking another vehicle at the time of the accident. He therefore defended the conclusion reached by the lower court that the appellants were at fault.
[14] On quantum, the respondent urged the Court to consider the degree and extent of the injuries sustained by him as backed by the report produced by Dr. Morebu . He mentioned that he underwent brain surgery. Consequently, it was the contention of the respondent that the issue of whether or not he suffered injuries is not in dispute.
[15] The respondent relied on the following excerpt from Charlesworth & Percy on Negligence 9 th Edition at page 721 and 723 at page 721, that:
"...an underlying principle of the law of the highway is that all those lawfully using the highway...must show mutual respect and forbearance. Hence the duty of a person who either drives or rides a vehicle on the highway is to use reasonable care to avoid damage to persons, vehicles or property of any kind on or adjoining the highway…the duty of care is owed to persons so placed that they may reasonably be expected to be injured by the omission to take such care.”
[16] It was therefore the submission of the respondent that, from the moment of the accident, he experienced and endured both physical and mental anguish and for a long time was deprived of the ability to earn a living. He reiterated his injuries and urged the Court not to disturb the award made by the lower court.
[17] The respondent placed reliance on Butler v Butler, Nairobi Civil Appeal No.49 of 1983 [1984] KLR and Mariga v Musila, Nairobi Civil Appeal No. 66 of 1982 & 88 of 1983 (consolidated) [1984] KLR, for the submission that assessment of damages is more like an exercise of discretion by the trial magistrate and an appellate court should be slow to reverse the decision of the lower court unless it has been shown either the lower court acted on wrong principles or awarded so excessive or so little damages that no reasonable court would award or that it had taken into consideration matters it ought not to have considered; or failed to take into consideration matters it ought to have considered, and as a result arrived at a wrong decision.
[18] The respondent contended that, in the instant appeal, it had not been demonstrated that the trial magistrate applied or acted on the wrong principles, or that the damages awarded were so excessive as to amount to a wrongful award, or even that she arrived at a wrong decision. He therefore prayed for the dismissal of the appeal.
[19] The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. [1968] EA 123 as follows:
“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.”
[20] The appeal is both on liability and quantum; and therefore my re-evaluation will be centered on those two issues.
[21] I have therefore considered the evidence placed before the lower court. That the accident happened, involving the respondent is not in dispute. It is also common ground that the respondent was then riding as a pillion passenger on Motor Cycle Registration No. KMEH 255H along the Oyugis-Kisumu Road and that there was a collision between that motor cycle and motor vehicle Registration No. KCJ 815U at Nyatindo area. The 1 st appellant expressly conceded in his evidence before the lower court that he was driving the subject motor vehicle. He however contended that the cyclist was to blame for swerving onto his lane. Faced with these disparate positions, the lower court cannot be faulted for apportioning liability as it did.
[22] Indeed, in Barclays Steward Limited & Another v Waiyaki [1982-88] 1 KAR 1118 it was held thus:
"The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it...Collision is a fact. It is however not reasonably possible to decide on the evidence of Waiyaki and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
[23] And in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681, Lord Reid had the following to say, which was quoted with approval by the Court of Appeal in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
[24] The trial court was faced with two divergent accounts as to how the accident occurred. He opted to find both parties equally liable. On the basis of the evidence, I am unable to fault the lower court for its conclusion. As was observed by Sir Kenneth O'Connor in Peters vs. Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
[25] I therefore find no basis for interfering with the lower court’s apportionment of liability at 80:20 in favour of the respondent.
[26] On quantum, I have paid attention to the guiding principles laid down in the authorities that were relied on by the parties. In Butt v Khan [1978] KECA 24 (KLR) for instance, the Court of Appeal held:
“…An appellate court will not disturb an award of damages unless it is so 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…”
[27] Moreover, in Stanley Maore v Geoffrey Mwenda [2004] eKLR the Court of Appeal restated the principle as follows:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[28] There is no dispute that the respondent sustained serious injuries. He adduced cogent evidence to demonstrate his injuries by way of documentary exhibits. The exhibits included the radiology findings (Exhibit 6), clinic card (Exhibit 8), a bundle of receipts as well as a Medical report prepared by Dr. Morebu . Hence, there was sufficient basis for the lower court to find, as a matter of fact, that the respondent suffered the following injuries:
[a] Hairline fracture of the right parieto temporal skull bruises
[b] Acute epidural haematoma of the right frontal temporal convexity with mass effects.
[c] Left frontal temporal contrecoup contusional haemorrhage.
[d] Bruises on the right parietal scalp
[e] Bruises on the right upper limb,
[f] Bruises on the left upper limb.
[g] Severe head injury with loss of consciousness
[29] The Medical Report prepared by Dr. Morebu further shows that, in addition to other injuries, the respondent suffered severe head injury with skull fracture, for which recovery would take a long time. His prognosis was that the respondent was likely to suffer post-traumatic epilepsy or psychosis. He therefore estimated the respondent’s permanent disability at 50%.
[30] In the light of the foregoing, and granted the nature and extent of the injuries sustained by the respondent, I find no reason to interfere with the award of Kshs. 1,552,000/= as general damages. There was no dispute on the special damages component of the lower court’s decision, which I hereby confirm. The final computation was as follows:
[a] Liability 80:20%
[b] General damages Kshs. 1,500,000/=
[c] Special damages Kshs. 52,050/=
Total Kshs. 1,552,000/=
Less 20% contribution Kshs. 1,242,000/=
[31] It is notable that the injuries suffered in all the authorities relied on by the appellant involved less serious injuries; and in the case of Omondi v Anzofu (supra) where there was an allegation of a skull fracture, the appellate court noted that:
“The report of Dr. Wandugu indicated that the documents he relied on to form the opinion that there was skull fracture were the P3 form and management notes from Kinani Family Dental and Medical Care. The doctor did not state that he examined any x-ray film to confirm whether there was skull fracture. So then, whose report is more reliable between the report of Dr. Wambugu who examined x-ay films and saw no evidence of a fracture and Dr. Wandugu who did not examine any x-ray films but still formed an opinion that there was a skull fracture? I am of the strong view that the report of Dr. Mwangi Wambugu was more reliable. He examined x-rays and found no evidence of fractures while Dr. A Wandugu did not examine any x-rays. The latter doctor did not explain why he formed the opinion that the respondent sustained a skull fracture when he did not review any x-rays confirming the fracture. I therefore find as opined by Dr. Mwangi Wambugu, DW1, that the respondent only sustained soft tissue injuries with no evidence of skull fracture. The injuries were: trauma to the head, bruises (r) parietal scalp that left him with a scar, trauma to the left upper arm and trauma and bruises over the shoulder joint.
[32] It was on the foregoing basis that the award of kshs. 1,000,000/= was reduced to Kshs. 300,000/=. Hence, that authority cannot be said to be similar or comparable to the facts in this matter.
[33] In the result, the appeal dated 6 th July 2022 is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24 TH DAY OF APRIL 2026
[2] The appellants entered appearance and filed their Statement of Defence dated the 3 rd day of November 2020 wherein they denied the allegations of facts contained in the Plaint; placed the Respondent herein to strict proof thereof and urged the Honorable Court to dismiss the respondent's case with costs. The suit proceeded to its logical conclusion and judgment was entered for the respondent as follows:
[a] liability 80:20
[b] General damages Kshs. 1,500,000
[c] Special damages Kshs. 52,050
Subtotal Kshs. 1,552,050
Less 20% contribution Kshs. 1,242,000
[3] Being dissatisfied with the trial Court's decision, the appellants filed the instant appeal on the following grounds:
[a] The learned trial magistrate erred in law and in fact in holding the defendants 80% liable when the plaintiff did not lead any evidence to prove his case on a balance of probability.
[b] The learned magistrate erred in law and fact by pronouncing judgement in favour of the plaintiff in the absence of an eye witness and/or any other concrete evidence in support thereof.
[c] The learned magistrate erred in law and fact by using the defendants ' evidence to aid the plaintiff's case contrary to the law that the burden of proof lay squarely on the part of the plaintiff.
[d] The learned magistrate erred in law and fact by ignoring the fact the plaintiff was an excess passenger in the motor cycle he was travelling on contrary to the Traffic Act and ought to have been held liable on that account.
[e] The learned magistrate erred in law and fact by invoking far-fetched evidence to breathe life to the plaintiff's case.
[f] The learned magistrate erred in law and fact by holding the defendants 80% when, to the contrary, the plaintiff ought to have been 100 0 % liable.
[g] The learned magistrate erred in law in awardinng excessive damages against the defendants.
[h] The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendants to net damages of Kshs. 1,242, 000/= without concrete documentary evidence.
[i] The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendants to special damages of Kshs. 52,500/= without concrete documentary evidence.
[j] The learned magistrate erred in law and fact in failing to appreciate that there could be no liability without fault.
[k] The learned magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis , thereby deriving an erroneous finding/conclusion on damages.
[l] The learned magistrate erred in law and fact in failing to appreciate that the plaintiff's pleadings and evidence tendered in support thereof was incapable of sustaining the excessive award of damages made by her.
[m] The learned trial magistrate erred in law and in fact in entering judgement in favour of the plaintiff against the defendant in spite of the plaintiff's failure to establish his case; especially on quantum.
[n] The learned trial magistrate erred in law and in fact in failing to appreciate the applicable legal principles.
[4] Consequently, the appellants prayed that their appeal be allowed and the finding and/or assessment of the learned magistrate on general damages be set aside and be substituted with a finding commensurate to the injuries sustained vis-à-vis the documents tendered in support thereof and judicial authorizes in similar cases.
[5] The appeal was disposed of through written submissions, pursuant to the directions given herein on 28 th November 2024. The appellants filed written submissions dated 14 th February 2025 and proposed two issues for determination; namely liability and quantum. They submitted that the burden of proof was on the respondent to prove his case before the lower court on a balance of probabilities. While they did not dispute that an accident occurred as alleged, they submitted that that of itself was not sufficient basis for them to be held liable. They relied on Stackpark Industries v James Mbithi , Nairobi Civil Appeal No. 152 of 2003 in support of this proposition.
[6] In particular, the appellants submitted that the respondent failed to demonstrate that:
[a] A causal link existed between their alleged negligence and the occurrence of the alleged accident.
[b] The alleged injuries were as a result of the alleged accident.
[c] The driver of the motor vehicle registration number KCJ 815U was charged with any traffic offence.
[7] They posited that the respondent authored his own misfortune by acting negligently and carelessly and without due regard to his own safety by cycling at an excessive speed in the circumstances and failing to keep proper lookout while cycling to avoid the alleged accident. In their view, no compelling evidence was placed before the lower court in support of the respondent's case. On the authority of Statpack Industries v James Mbithi , Nairobi Civil Appeal No. 152 of 2003, Muthuku Kiema v Kenya Cargo Handling Services Ltd [1991] KLR 464 , Japhet Nkubitu & Another v Regina Thirindi [1998] KECA 270 (KLR) and Cleophas Shimanyula v Mohamed Salat [2018] eKLR they urged the Court to allow the appeal on liability.
[8] On quantum, the appellants urged the Court to note the pleaded injuries, namely:
[a] Hairline fracture of the right parieto-temporal skull bruises
[b] Acute epidural haematoma of the right frontal temporal convexity with mass effects.
[c] Left frontal temporal contrecoup contusional haemorrhages.
[d] Bruises on the right parietal scalp
[e] Bruises on the right upper limb,
[f] Bruises on the left upper limb.
[g] Severe head injury with loss of consciousness
[9] They submitted that, based on the injuries aforestated, the lower court ought to have awarded the respondent Kshs. 350,000/= only as general damages for pain, suffering and loss of amenities. They relied on the following cases, among others:
[a] Joseph Musee v Julius Mboqo Muqi & 3 Others [20131 eKLR page 10 wherein it was held that damages for injuries sustained must be within consistent limits and should represent a fair compensation.
[b] Mbani v Ogalo [2024] KEHC 689 KLR , in which the Court upheld the decision of the trial court which had awarded Kshs. 350,000/= for damages similar injuries.
[c] Omondi v Anzofu (Civil Appeal 04 of 2020 [2024] KEHC 2675 (Judgement) in which an award of Kshs. 1,000,000/= was substituted on appeal with an award of Kshs. 300,000/=.
[d] Juliet Remunto Ondati v Gladys Mwende [2021] eKLR, the Court awarded Kshs. 350,000/= to the Plaintiff who had sustained much more serious injuries, including 65% disability.
[10] With regard to special damages, the appellants urged the court to award only the amount proved before the lower court by way of production of relevant receipts.
[11] The respondent relied on his written submissions dated 4 th December 2024. He was in agreement that the issues for determination relate to the following aspects:
[a] Liability
[b] Loss and damage suffered by the plaintiff
[c] Quantum of damages.
[12] The respondent submitted that by the time the trial court retreated to do its judgement, it was no longer in dispute that an accident did indeed occur as was pleaded and that as a direct consequence, the respondent sustained severe bodily injuries causing him much pain, suffering and loss. He further submitted that there was no dispute that the suit motor vehicle was the property of the appellants jointly and severally.
[13] On negligence and liability, the respondent reiterated his posturing that on the fateful day and time, he was a lawful pillion passenger on a motorcycle that was being ridden along the Oyugis-Kisumu road when the accident occurred. He made reference to the evidence of the 1 st appellant who testified before the lower court as DW1 and stated that he was so suddenly overtaking another vehicle at the time of the accident. He therefore defended the conclusion reached by the lower court that the appellants were at fault.
[14] On quantum, the respondent urged the Court to consider the degree and extent of the injuries sustained by him as backed by the report produced by Dr. Morebu . He mentioned that he underwent brain surgery. Consequently, it was the contention of the respondent that the issue of whether or not he suffered injuries is not in dispute.
[15] The respondent relied on the following excerpt from Charlesworth & Percy on Negligence 9 th Edition at page 721 and 723 at page 721, that:
"...an underlying principle of the law of the highway is that all those lawfully using the highway...must show mutual respect and forbearance. Hence the duty of a person who either drives or rides a vehicle on the highway is to use reasonable care to avoid damage to persons, vehicles or property of any kind on or adjoining the highway…the duty of care is owed to persons so placed that they may reasonably be expected to be injured by the omission to take such care.”
[16] It was therefore the submission of the respondent that, from the moment of the accident, he experienced and endured both physical and mental anguish and for a long time was deprived of the ability to earn a living. He reiterated his injuries and urged the Court not to disturb the award made by the lower court.
[17] The respondent placed reliance on Butler v Butler, Nairobi Civil Appeal No.49 of 1983 [1984] KLR and Mariga v Musila, Nairobi Civil Appeal No. 66 of 1982 & 88 of 1983 (consolidated) [1984] KLR, for the submission that assessment of damages is more like an exercise of discretion by the trial magistrate and an appellate court should be slow to reverse the decision of the lower court unless it has been shown either the lower court acted on wrong principles or awarded so excessive or so little damages that no reasonable court would award or that it had taken into consideration matters it ought not to have considered; or failed to take into consideration matters it ought to have considered, and as a result arrived at a wrong decision.
[18] The respondent contended that, in the instant appeal, it had not been demonstrated that the trial magistrate applied or acted on the wrong principles, or that the damages awarded were so excessive as to amount to a wrongful award, or even that she arrived at a wrong decision. He therefore prayed for the dismissal of the appeal.
[19] The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. [1968] EA 123 as follows:
“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.”
[20] The appeal is both on liability and quantum; and therefore my re-evaluation will be centered on those two issues.
[21] I have therefore considered the evidence placed before the lower court. That the accident happened, involving the respondent is not in dispute. It is also common ground that the respondent was then riding as a pillion passenger on Motor Cycle Registration No. KMEH 255H along the Oyugis-Kisumu Road and that there was a collision between that motor cycle and motor vehicle Registration No. KCJ 815U at Nyatindo area. The 1 st appellant expressly conceded in his evidence before the lower court that he was driving the subject motor vehicle. He however contended that the cyclist was to blame for swerving onto his lane. Faced with these disparate positions, the lower court cannot be faulted for apportioning liability as it did.
[22] Indeed, in Barclays Steward Limited & Another v Waiyaki [1982-88] 1 KAR 1118 it was held thus:
"The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it...Collision is a fact. It is however not reasonably possible to decide on the evidence of Waiyaki and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
[23] And in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681, Lord Reid had the following to say, which was quoted with approval by the Court of Appeal in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
[24] The trial court was faced with two divergent accounts as to how the accident occurred. He opted to find both parties equally liable. On the basis of the evidence, I am unable to fault the lower court for its conclusion. As was observed by Sir Kenneth O'Connor in Peters vs. Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
[25] I therefore find no basis for interfering with the lower court’s apportionment of liability at 80:20 in favour of the respondent.
[26] On quantum, I have paid attention to the guiding principles laid down in the authorities that were relied on by the parties. In Butt v Khan [1978] KECA 24 (KLR) for instance, the Court of Appeal held:
“…An appellate court will not disturb an award of damages unless it is so 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…”
[27] Moreover, in Stanley Maore v Geoffrey Mwenda [2004] eKLR the Court of Appeal restated the principle as follows:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[28] There is no dispute that the respondent sustained serious injuries. He adduced cogent evidence to demonstrate his injuries by way of documentary exhibits. The exhibits included the radiology findings (Exhibit 6), clinic card (Exhibit 8), a bundle of receipts as well as a Medical report prepared by Dr. Morebu . Hence, there was sufficient basis for the lower court to find, as a matter of fact, that the respondent suffered the following injuries:
[a] Hairline fracture of the right parieto temporal skull bruises
[b] Acute epidural haematoma of the right frontal temporal convexity with mass effects.
[c] Left frontal temporal contrecoup contusional haemorrhage.
[d] Bruises on the right parietal scalp
[e] Bruises on the right upper limb,
[f] Bruises on the left upper limb.
[g] Severe head injury with loss of consciousness
[29] The Medical Report prepared by Dr. Morebu further shows that, in addition to other injuries, the respondent suffered severe head injury with skull fracture, for which recovery would take a long time. His prognosis was that the respondent was likely to suffer post-traumatic epilepsy or psychosis. He therefore estimated the respondent’s permanent disability at 50%.
[30] In the light of the foregoing, and granted the nature and extent of the injuries sustained by the respondent, I find no reason to interfere with the award of Kshs. 1,552,000/= as general damages. There was no dispute on the special damages component of the lower court’s decision, which I hereby confirm. The final computation was as follows:
[a] Liability 80:20%
[b] General damages Kshs. 1,500,000/=
[c] Special damages Kshs. 52,050/=
Total Kshs. 1,552,000/=
Less 20% contribution Kshs. 1,242,000/=
[31] It is notable that the injuries suffered in all the authorities relied on by the appellant involved less serious injuries; and in the case of Omondi v Anzofu (supra) where there was an allegation of a skull fracture, the appellate court noted that:
“The report of Dr. Wandugu indicated that the documents he relied on to form the opinion that there was skull fracture were the P3 form and management notes from Kinani Family Dental and Medical Care. The doctor did not state that he examined any x-ray film to confirm whether there was skull fracture. So then, whose report is more reliable between the report of Dr. Wambugu who examined x-ay films and saw no evidence of a fracture and Dr. Wandugu who did not examine any x-ray films but still formed an opinion that there was a skull fracture? I am of the strong view that the report of Dr. Mwangi Wambugu was more reliable. He examined x-rays and found no evidence of fractures while Dr. A Wandugu did not examine any x-rays. The latter doctor did not explain why he formed the opinion that the respondent sustained a skull fracture when he did not review any x-rays confirming the fracture. I therefore find as opined by Dr. Mwangi Wambugu, DW1, that the respondent only sustained soft tissue injuries with no evidence of skull fracture. The injuries were: trauma to the head, bruises (r) parietal scalp that left him with a scar, trauma to the left upper arm and trauma and bruises over the shoulder joint.
[32] It was on the foregoing basis that the award of kshs. 1,000,000/= was reduced to Kshs. 300,000/=. Hence, that authority cannot be said to be similar or comparable to the facts in this matter.
[33] In the result, the appeal dated 6 th July 2022 is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24 TH DAY OF APRIL 2026