(Being an Appeal from the judgment and decree of Hon. C. Auka Senior Resident Magistrate delivered on 29/11/2023 in Kwale Magistrates Court Civil Case No. 178 of 2019)
1. This appeal through the memorandum dated 7/12/2023 is on both liability and assessment of damages. It seeks to set aside the decree of the trial court arising from a judgment of dated 29/11/2023.
2. The 1st respondent sued the appellant as 2nd defendant and the 2nd respondent as 1st defendant before the trial court through a plaint dated 12/3/2019 claiming general and special damages for injuries arising out of a road traffic accident on 5/5/2018. The respondent’s case was that he was a lawful passenger in the appellant’s motor vehicle registration number KAT 915A Nissan matatu when the same collided with the 2nd respondent’s motor vehicle registration number KCJ 557R Toyota Axio along the Ukunda-Likoni road. He blamed the drivers of both vehicles for the accident and held the appellant and 2nd respondent herein vicariously liable as owners of the vehicles.
3. As a result of the accident, the 1st respondent sustained injuries.
4. The 2nd respondent herein, the owner of the Toyota Axio, did not enter appearance nor file defence to the suit. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found the appellant and the 2nd respondent liable for the accident and awarded KShs 2,500,000/= as general damages for pain, suffering and loss of amenities, KShs 250,000/= future medical expenses and KShs 2,550/= special damages.
5. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that is, that the learned trial magistrate misdirected herself and failed to apply precedent and the principles of law applicable first, in determining liability against the appellant, considering that interlocutory judgment had been entered against the 2nd respondent and second on the award of damages which in the circumstances were inordinately high thereby representing an erroneous estimate.
6. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be set aside and “costs be assessed again” (sic), and costs be borne by the respondent.
7. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the 1st respondent.
8. The appellant’s submissions on liability are that the 1st respondent’s evidence as PW 1 did not explain the circumstances under which the accident occurred clearly as he only said that there was a collision between the Nissan matatu and Toyota Axio without providing details of how the collision occurred. On the other hand, the evidence of PW 2, the police officer was that the 2nd respondent was solely to blame for the accident as he was subsequently charged, convicted and fined. He submitted further that PW 2 admitted in cross examination that the driver of the Nissan matatu was not to blame and he was not charged.
9. Learned counsel submits further that PW 2 testified that the driver of the Toyota Axio was charged with careless driving and fined KShs. 30,000/= or in default to serve imprisonment. Consequently, the said driver of the Axio was found culpable with the offense of driving without due care and attention. He submits further that PW 2 stated that sketch plans were drawn and measurements were taken and produced as evidence. Learned counsel cites section 47A of the Evidence Act (Chapter 80 Laws of Kenya) which provides that a final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.
10. Learned counsel relies on the case of Murigi & another v Mwangi & another (Administrator of the Estate of Bernard Njuguna (Deceased) (Civil Appeal 389 of 2019) [2023] where the court stated that the meaning of section 47 aforesaid is that the fact of conviction is a conclusive proof that such a person was convicted and that fact cannot be challenged. According to learned counsel, this means that in accident cases, a conviction implies negligence on the part of the person convicted hence that person cannot deny negligence or otherwise assert that he is completely blameless.
11. Learned counsel also cites the case of Queens Cleaners and Dyers Ltd v. East African Community and others [1972] EA 229 where it was held that:
“Careless driving necessarily connotes some degree of negligence, and in those circumstances, it may not be open to the respondent to deny that his driving in relation to the accident, was negligent…The expression “conclusive evidence” in section 47A of the Evidence Act means evidence which cannot be the subject matter of dispute, qualification or challenge.”
12. It is the position by learned counsel for the appellant that the 2nd respondent having been convicted in the traffic case, then he must be found to be 100% liable for the accident in this case.
13. Learned counsel for the 1st respondent on his part submitted only on the issue of award of damages. He did not submit on liability.
14. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
15. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the findings of the trial court on liability were supported by the evidence on record and whether damages awarded by the trial court were so inordinately high as to be erroneous and subject to be upset.
16. Two witnesses gave evidence on how the accident occurred. PW 1, Peter Mwakuwona Mganga, the 1st respondent said there was a head-on collision between the matatu in which he was a passenger and the Toyota Axio. He blamed the matatu for speeding. PW 2, Sgt Charles Wanjala of Diani police station was the investigating officer. He visited the scene shortly after the accident. The accident had occurred along Ukunda-Likoni road at Maganyakulo area involving two motor vehicles registration numbers KCJ 557R Toyota Axio driven by one Maraso Felix and KAT 915A Nissan Matatu driven by Musena Marisa Chisati. He said he prepared sketch maps, plans and legends of the accident scene. He produced them in evidence in the traffic case against the driver of the Toyota Axio. He said the two vehicles were moving in opposite directions, with the Nissan from Ukunda towards Likoni general direction. The Toyota Axio from the opposite direction suddenly moved into the lane of the matatu and the two vehicles collided thereby causing the accident. The driver of the Toyota Axio was blamed for the accident and he was charged in Traffic Case No. 199 of 2018 for the offence of driving without due care and attention and he was convicted and fined KShs 30,000/= in default to serve 15 months imprisonment (sic).
17. I agree with learned counsel for the appellant that the 1st respondent’s evidence was not conclusive on whether blame was attributable to the matatu driver or the Toyota Axio driver. In his recorded witness statement which he adopted as his evidence in chief, he said the Axio veered off its lane and went into the lane of the matatu in which he was a passenger thereby causing a head-on collision. This version is in line with what PW 2 found in his investigations that the Nissan suddenly joined the lane of the oncoming vehicle, the matatu in which the 1st respondent was travelling thereby causing a collision. However, in his testimony in court, the 1st respondent said that he blamed the matatu driver for speeding.
18. One thing that is common in the evidence of the two witnesses is that there was a head-on collision between the two vehicles which happened in the lane of the matatu. That means the Toyota Axio left its lane and went in the lane of the matatu. Yet the evidence of the 1st respondent that the matatu was speeding in the circumstances cannot be wished away because, unlike the investigating officer, he was present and could perceive the speed of the matatu. It is not the case, as submitted by learned counsel for the appellant, that he must have seen the speedometer reading in order to perceive that the vehicle was speeding. Whether or not a vehicle is speeding is determined by the circumstances obtaining at the particular time. Factors such as weather conditions, visibility, road conditions, road curvature, road inclines, the volume of traffic on the road, either vehicular or human, and even the driver’s experience among various other factors would dictate whether one was speeding in the circumstances or not. It is not expected that a passenger, even in the front seat, not even the driver of the vehicle would have eyes glued to the speedometer to know whether the vehicle is speeding or not. The speedometer only helps the driver to know the speed at which the vehicle is moving and therefore whether or not it is moving too fast under the particular circumstances.
19. Neither of the two drivers attended court to explain what actually happened. However, it is a fact that the collision was head-on. It happened in broad daylight and there is no indication that there was anything else that could have caused the driver of the matatu not to swerve in order to avoid the head-on collision or at least minimize the impact. He cannot therefore escape blame wholly.
20. In the case of Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at p. 681 Lord Reid considered this scenario and stated that:
“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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone 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 cause the accident. I doubt whether any test can apply generally.”
21. The issue of a driver such as that of the Toyota Axio being convicted for careless driving and therefore what responsibility he should bear for the accident was dealt with by the Court of Appeal in the case of Chemwolo and Another vs. Kubende [1986] KLR 492; [1986-1989] EA 74. Platt, JA in opined that:
“It was not for the Judge to read the proceedings in the Traffic case as if the evidence recorded there was the final position in the case since not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness. It was therefore premature to come to the conclusion that not even prima facie case of contributory negligence could be established. It would have been right to have held that there was some evidence upon which a triable issue as to contributory negligence arose on the strength of the proceedings in the traffic case… It was correct for the learned Judge to refer to the conviction because section 47A of the Evidence Act (Chapter 80) declares that where a final judgement of competent court in criminal proceedings has declared any person to be guilty of criminal offence, after expiry of the time limited for appeal, judgement shall be taken as conclusive evidence that the person so convicted was guilty of that offence. But that does not matter because it may also be that the other party was also guilty of carelessness and despite the other party’s conviction, the issue of contributory negligence may still be alive if the facts warrant it and this may affect the quantum of damages.”
22. On his part, Apaloo, JA (as he then was) expressed himself thus:
“It was not competent for the Judge to merely peruse the record of the criminal trial and conclude that a prima facie case on contributory negligence cannot be established. If the averments of contributory negligence are proved at the trial, the Court may well feel that the plaintiff was in part to blame for the accident and the Court would then come under a duty to assess his own degree of blameworthiness and depending on the Court’s assessment of responsibility for the accident, such apportionment may affect, perhaps in a substantial manner, the quantum of damages to which the plaintiff is entitled. Or it may affect it in a negligible way. Whatever it is, there is a triable issue on the plea of contributory negligence.”
23. It follows from the foregoing consideration of the issue of conviction of the Toyota Axio driver that it is not obvious that such conviction absolved the driver of the matatu of all blame in the accident. The court has to consider the evidence and determine whether he contributed to the accident or not.
24. In the circumstances of the present case and on the evidence on record, I find that the Toyota Axio driver and therefore the 2nd respondent must bear more blame for causing the accident. The learned trial magistrate did not apportion liability between the two drivers, finding that the appellant was 100% liable. Since there was interlocutory judgment against the 2nd respondent, this meant that both drivers were equally to blame for the accident. That was an erroneous finding given the evidence on record.
25. It is not true as submitted by learned counsel for the appellant that the matatu driver was completely without blame. On the evidence on record, it is apparent that the Toyota Axio driver was more to blame than the matatu driver. I will therefore apportion liability between the appellant herein and the 2nd respondent in the ratio of 30:70 respectively.
26. The injuries sustained by the 1st respondent are pleaded in the plaint as follows:
(a) Dislocation of the left hip.
(b) Dislocation of the right knee.
(c) Fracture to the right femur.
(d) Soft tissue injuries to the chest, back and abdomen
(e) Massive loss of blood.
27. Dr. Ajoni Adede who examined the 1st respondent on 11/2/2019, some nine months after the accident testified as PW 3. He prepared the medical report dated 11/2/2019 where he indicated the injuries sustained by the 1st respondent to be:
a. dislocation of the left hip.
b. comminuted fractures left acetabulum, hip socket bone, right femur and right patella knee cap bone.
c. fracture of the pelvis (right ischio-pubic) region and right tibia leg bone (lateral-condyle).
d. Fracture of the right 1st metatarsal fast bone.
e. Dislocation of the all five metatarsal foot bones.
f. Deep cut on the left ankle.
g. Blunt object injury to the chest, back and abdomen.
h. Severe bleeding with hemorrhagic shock.
28. On treatment received, Dr. Adede reported that the 1st respondent was admitted for 4 days in ICU and 6 days in the General ward in Mombasa hospital. He underwent left ankle skin grafting, left hip reduction, right femur interlocking metal implant; right tibia screw metal implant, Patella and metatarsals wire metal implants, blood transfusion of 6 pints and shock management. The doctor said that the metal implants would be removed after 2 years at a total estimated cost of KShs 250,000/= and that due to the multiple hip fractures he estimated partial disability at 30%.
29. I note that these injuries and treatment received are in line with those noted by Dr. Udayan Seth in his report dated 16/5/2018, upon discharge of the 1st respondent from Mombasa hospital. I have also seen the P3 form dated 20/9/2018 completed by Dr. Uba A.H. that also indicates these injuries.
30. At the trial court the appellant proposed an award of KShs 250,000/= while the respondent proposed an award of KShs 5,500,000/= as general damages for pain, suffering and loss of amenities.
31. The learned trial magistrate indicated in her judgment that she had considered the authorities submitted by the parties but did not indicate any in her judgment. However, considering the award she made, she appears to have been swayed by the authorities submitted by the 1st respondent where the awards for general damages ranged from KShs 1,700,000/= to KShs 5 million for various injuries.
32. The authorities submitted by the 1st respondent at the trial were as follows:
a. John Joel Koskei v Kenya Power & Lighting Co. Ltd [2005] KEHC 2832 (KLR) where the plaintiff stated that he sustained the following injuries:
- fracture of the skull
- soft tissue injuries on the knee
- 2 broken teeth.
In addition, the plaintiff lost consciousness and only regained the same while at the Pine Breeze Hospital where he had been admitted for 2 months. He was admitted in hospital on three different occasions. Dr. Kiamba deposed that the plaintiff was later referred to a Psychiatrist for a mental checkup due to inappropriate behaviour. According to Dr. Kiamba, the plaintiff sustained injuries of grievous harm and had permanent disability of 30%.
The High Court in 2005 awarded the plaintiff KShs 1,700,000/= general damages for pain, suffering and loss of amenities.
b. Antony Peter Wainaina v Jumba Patrick Oganda & 3 others [2021] KEHC 6726 (KLR) the appellant sustained the following injuries:
i. Injury to the abdominal chest
ii. Rapture of the diaphragm
iii. Perforation of the gut
iv. Fracture of the right femur
v. Fracture of the left humerus bone
vi. Fracture of two right ribs
vii. Fracture of the 10th thoracic vertebrae.
The fracture of the right femur was operated on and fixed with a K-nail. A metal plate was fixed on the left humerus bone. The fracture of the 10th thoracic vertebrae was stabilized using a metal plate. The fractures united very well and the appellant did not have major complaints.
The High Court on appeal enhanced the lower court award of general damages for pain and suffering from Kshs.1,500,000/= to KShs 2,500,000/= the High Court finding that the appellant had a metal plate fixed on his spine and will have to live with it and there were other implants on the femur and humerus bone.
c. Board of Trustees of the Anglican Church of Kenya, Diocese of Marsabit v THW (Suing through her father and guardian ad litem HWG) [2024] KECA 1710 (KLR) the Court of Appeal sustained an award of KShs 5 million awarded by the trial court and affirmed by the High Court on appeal finding that the appellant suffered injuries that culminated in serious disability. She suffered a head injury with inability to walk and as noted by Dr. Mwanzia who produced the medical report, the respondent will require palliative care for life. This condition, as observed by the trial court in its judgment was that the respondent could not get out of the car or talk, and her course of life had completely changed for the worse.
33. The appellant on his part relied on the following cases:
a. Said Abdullahi & another v Alice Wanjira [2016] KEHC 5483 (KLR) where the respondent suffered a fracture of right humerus but Dr. Isaac Nderitu who examined her concluded that she had healed well and that in two years’ time the fracture will heal.
The High Court on appeal found the award of KShs 600,000/= general damages for pain and suffering by the trial court excessive and reduced it to KShs 300,000/=.
b. In Bildad Mwangi Gichuki v TM-AM Construction Group (Africa) [2002] KECA 191 (KLR) the appellant’s injuries were a fractured pelvis, three fractured ribs and segmental fracture of the left femur bone. The Court of Appeal found the award of KShs 250,000/= by the High Court for general damages for pain and suffering inordinately low and substituted it with an award of KShs 400,000/=.
34. Two other authorities only bore case numbers without indicating the full citations or copies thereof for the court’s consideration.
35. In the decisions cited by the appellant in this appeal are none of them has an injury on dislocation of the hip joint and knee joint which learned counsel does not think are serious injuries when indeed they are, considering the medical reports produced in evidence.
36. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“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.”
37. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
38. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
39. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
40. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
41. The decisions cited by learned counsel for the appellant involve less serious injuries. The more serious injuries in those decisions is fracture of the femur thereby overlooking the dislocation to the left hip joint and dislocation to the right knee in this case. They also overlook the extensive treatment the 1st respondent had to receive including multiple surgeries and skin grafting. On the other hand the decisions cited by learned counsel for the 1st respondent involved far more serious injuries than those sustained by the 1st respondent herein. I have looked up the following cases which I consider to bear injuries comparable to those sustained by the 1st respondent.
42. In Gitonga v Kalunge [2022] KEHC 3070 (KLR) the respondent suffered the following injuries:
a. Brain contusion with loss of consciousness for 2 hours and disorientation for 4 days
b. Soft tissue injuries anterior chest
c. Soft tissue injuries left shoulder
d. Left acetabulum fracture with posterior hip dislocation
The High Court on appeal substituted the lower court award of KShs 1000,000/= general damages for pain and suffering with KShs 1,700,000/=.
43. In the case of Devna Pandit v Kennedy Otieno Obara & another [2016] KEHC 6468 (KLR) the plaintiff who had sustained a fracture dislocation left hip with fracture head of femur, a fracture left tibia comminuted and a fracture right face/maxilla, was awarded a sum of Kshs. 2,000,000/= general damages.
44. On my own consideration of the general trend as indicated in the authorities above, including those cited by learned counsels for both parties, I find that the injuries suffered by the 1st respondent although severe did not warrant the award made by the learned trial magistrate. I find that the award was so inordinately high that this court must interfere with it. Accordingly, I set aside the award of KShs 2,500,000/= and substitute it with one of KShs 2,000,000/= general damages for pain, suffering and loss of amenities.
45. Learned counsel for the appellant has made submissions that the trial court awarded damages for future medical expenses when the same were not pleaded and so the award should be set aside. However, there was no ground of appeal on that issue and so this court is unable to consider it.
46. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 2,000,000/=. The decision on award of damages for future medical expenses and special damages will remain as awarded by the trial court.
47. Having found that the appellant is only liable to the extend of 30% it means that out of the total sum of KShs 2,252,550/= the appellant is only liable to pay KShs 675,765/=. The judgment in the trial court was stated to be joint and several against the defendants (appellant and 2nd respondent herein) and the same shall remain.
48. The appeal is successful to that extend.
49. Each party will bear its own costs of the appeal.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 30th day of July 2025 in the presence of:
… for the appellant.
… for the respondent.
Hud: Court assistant.
1. This appeal through the memorandum dated 7/12/2023 is on both liability and assessment of damages. It seeks to set aside the decree of the trial court arising from a judgment of dated 29/11/2023.
2. The 1st respondent sued the appellant as 2nd defendant and the 2nd respondent as 1st defendant before the trial court through a plaint dated 12/3/2019 claiming general and special damages for injuries arising out of a road traffic accident on 5/5/2018. The respondent’s case was that he was a lawful passenger in the appellant’s motor vehicle registration number KAT 915A Nissan matatu when the same collided with the 2nd respondent’s motor vehicle registration number KCJ 557R Toyota Axio along the Ukunda-Likoni road. He blamed the drivers of both vehicles for the accident and held the appellant and 2nd respondent herein vicariously liable as owners of the vehicles.
3. As a result of the accident, the 1st respondent sustained injuries.
4. The 2nd respondent herein, the owner of the Toyota Axio, did not enter appearance nor file defence to the suit. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found the appellant and the 2nd respondent liable for the accident and awarded KShs 2,500,000/= as general damages for pain, suffering and loss of amenities, KShs 250,000/= future medical expenses and KShs 2,550/= special damages.
5. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that is, that the learned trial magistrate misdirected herself and failed to apply precedent and the principles of law applicable first, in determining liability against the appellant, considering that interlocutory judgment had been entered against the 2nd respondent and second on the award of damages which in the circumstances were inordinately high thereby representing an erroneous estimate.
6. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be set aside and “costs be assessed again” (sic), and costs be borne by the respondent.
7. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the 1st respondent.
8. The appellant’s submissions on liability are that the 1st respondent’s evidence as PW 1 did not explain the circumstances under which the accident occurred clearly as he only said that there was a collision between the Nissan matatu and Toyota Axio without providing details of how the collision occurred. On the other hand, the evidence of PW 2, the police officer was that the 2nd respondent was solely to blame for the accident as he was subsequently charged, convicted and fined. He submitted further that PW 2 admitted in cross examination that the driver of the Nissan matatu was not to blame and he was not charged.
9. Learned counsel submits further that PW 2 testified that the driver of the Toyota Axio was charged with careless driving and fined KShs. 30,000/= or in default to serve imprisonment. Consequently, the said driver of the Axio was found culpable with the offense of driving without due care and attention. He submits further that PW 2 stated that sketch plans were drawn and measurements were taken and produced as evidence. Learned counsel cites section 47A of the Evidence Act (Chapter 80 Laws of Kenya) which provides that a final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.
10. Learned counsel relies on the case of Murigi & another v Mwangi & another (Administrator of the Estate of Bernard Njuguna (Deceased) (Civil Appeal 389 of 2019) [2023] where the court stated that the meaning of section 47 aforesaid is that the fact of conviction is a conclusive proof that such a person was convicted and that fact cannot be challenged. According to learned counsel, this means that in accident cases, a conviction implies negligence on the part of the person convicted hence that person cannot deny negligence or otherwise assert that he is completely blameless.
11. Learned counsel also cites the case of Queens Cleaners and Dyers Ltd v. East African Community and others [1972] EA 229 where it was held that:
“Careless driving necessarily connotes some degree of negligence, and in those circumstances, it may not be open to the respondent to deny that his driving in relation to the accident, was negligent…The expression “conclusive evidence” in section 47A of the Evidence Act means evidence which cannot be the subject matter of dispute, qualification or challenge.”
12. It is the position by learned counsel for the appellant that the 2nd respondent having been convicted in the traffic case, then he must be found to be 100% liable for the accident in this case.
13. Learned counsel for the 1st respondent on his part submitted only on the issue of award of damages. He did not submit on liability.
14. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
15. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the findings of the trial court on liability were supported by the evidence on record and whether damages awarded by the trial court were so inordinately high as to be erroneous and subject to be upset.
16. Two witnesses gave evidence on how the accident occurred. PW 1, Peter Mwakuwona Mganga, the 1st respondent said there was a head-on collision between the matatu in which he was a passenger and the Toyota Axio. He blamed the matatu for speeding. PW 2, Sgt Charles Wanjala of Diani police station was the investigating officer. He visited the scene shortly after the accident. The accident had occurred along Ukunda-Likoni road at Maganyakulo area involving two motor vehicles registration numbers KCJ 557R Toyota Axio driven by one Maraso Felix and KAT 915A Nissan Matatu driven by Musena Marisa Chisati. He said he prepared sketch maps, plans and legends of the accident scene. He produced them in evidence in the traffic case against the driver of the Toyota Axio. He said the two vehicles were moving in opposite directions, with the Nissan from Ukunda towards Likoni general direction. The Toyota Axio from the opposite direction suddenly moved into the lane of the matatu and the two vehicles collided thereby causing the accident. The driver of the Toyota Axio was blamed for the accident and he was charged in Traffic Case No. 199 of 2018 for the offence of driving without due care and attention and he was convicted and fined KShs 30,000/= in default to serve 15 months imprisonment (sic).
17. I agree with learned counsel for the appellant that the 1st respondent’s evidence was not conclusive on whether blame was attributable to the matatu driver or the Toyota Axio driver. In his recorded witness statement which he adopted as his evidence in chief, he said the Axio veered off its lane and went into the lane of the matatu in which he was a passenger thereby causing a head-on collision. This version is in line with what PW 2 found in his investigations that the Nissan suddenly joined the lane of the oncoming vehicle, the matatu in which the 1st respondent was travelling thereby causing a collision. However, in his testimony in court, the 1st respondent said that he blamed the matatu driver for speeding.
18. One thing that is common in the evidence of the two witnesses is that there was a head-on collision between the two vehicles which happened in the lane of the matatu. That means the Toyota Axio left its lane and went in the lane of the matatu. Yet the evidence of the 1st respondent that the matatu was speeding in the circumstances cannot be wished away because, unlike the investigating officer, he was present and could perceive the speed of the matatu. It is not the case, as submitted by learned counsel for the appellant, that he must have seen the speedometer reading in order to perceive that the vehicle was speeding. Whether or not a vehicle is speeding is determined by the circumstances obtaining at the particular time. Factors such as weather conditions, visibility, road conditions, road curvature, road inclines, the volume of traffic on the road, either vehicular or human, and even the driver’s experience among various other factors would dictate whether one was speeding in the circumstances or not. It is not expected that a passenger, even in the front seat, not even the driver of the vehicle would have eyes glued to the speedometer to know whether the vehicle is speeding or not. The speedometer only helps the driver to know the speed at which the vehicle is moving and therefore whether or not it is moving too fast under the particular circumstances.
19. Neither of the two drivers attended court to explain what actually happened. However, it is a fact that the collision was head-on. It happened in broad daylight and there is no indication that there was anything else that could have caused the driver of the matatu not to swerve in order to avoid the head-on collision or at least minimize the impact. He cannot therefore escape blame wholly.
20. In the case of Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at p. 681 Lord Reid considered this scenario and stated that:
“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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone 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 cause the accident. I doubt whether any test can apply generally.”
21. The issue of a driver such as that of the Toyota Axio being convicted for careless driving and therefore what responsibility he should bear for the accident was dealt with by the Court of Appeal in the case of Chemwolo and Another vs. Kubende [1986] KLR 492; [1986-1989] EA 74. Platt, JA in opined that:
“It was not for the Judge to read the proceedings in the Traffic case as if the evidence recorded there was the final position in the case since not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness. It was therefore premature to come to the conclusion that not even prima facie case of contributory negligence could be established. It would have been right to have held that there was some evidence upon which a triable issue as to contributory negligence arose on the strength of the proceedings in the traffic case… It was correct for the learned Judge to refer to the conviction because section 47A of the Evidence Act (Chapter 80) declares that where a final judgement of competent court in criminal proceedings has declared any person to be guilty of criminal offence, after expiry of the time limited for appeal, judgement shall be taken as conclusive evidence that the person so convicted was guilty of that offence. But that does not matter because it may also be that the other party was also guilty of carelessness and despite the other party’s conviction, the issue of contributory negligence may still be alive if the facts warrant it and this may affect the quantum of damages.”
22. On his part, Apaloo, JA (as he then was) expressed himself thus:
“It was not competent for the Judge to merely peruse the record of the criminal trial and conclude that a prima facie case on contributory negligence cannot be established. If the averments of contributory negligence are proved at the trial, the Court may well feel that the plaintiff was in part to blame for the accident and the Court would then come under a duty to assess his own degree of blameworthiness and depending on the Court’s assessment of responsibility for the accident, such apportionment may affect, perhaps in a substantial manner, the quantum of damages to which the plaintiff is entitled. Or it may affect it in a negligible way. Whatever it is, there is a triable issue on the plea of contributory negligence.”
23. It follows from the foregoing consideration of the issue of conviction of the Toyota Axio driver that it is not obvious that such conviction absolved the driver of the matatu of all blame in the accident. The court has to consider the evidence and determine whether he contributed to the accident or not.
24. In the circumstances of the present case and on the evidence on record, I find that the Toyota Axio driver and therefore the 2nd respondent must bear more blame for causing the accident. The learned trial magistrate did not apportion liability between the two drivers, finding that the appellant was 100% liable. Since there was interlocutory judgment against the 2nd respondent, this meant that both drivers were equally to blame for the accident. That was an erroneous finding given the evidence on record.
25. It is not true as submitted by learned counsel for the appellant that the matatu driver was completely without blame. On the evidence on record, it is apparent that the Toyota Axio driver was more to blame than the matatu driver. I will therefore apportion liability between the appellant herein and the 2nd respondent in the ratio of 30:70 respectively.
26. The injuries sustained by the 1st respondent are pleaded in the plaint as follows:
(a) Dislocation of the left hip.
(b) Dislocation of the right knee.
(c) Fracture to the right femur.
(d) Soft tissue injuries to the chest, back and abdomen
(e) Massive loss of blood.
27. Dr. Ajoni Adede who examined the 1st respondent on 11/2/2019, some nine months after the accident testified as PW 3. He prepared the medical report dated 11/2/2019 where he indicated the injuries sustained by the 1st respondent to be:
a. dislocation of the left hip.
b. comminuted fractures left acetabulum, hip socket bone, right femur and right patella knee cap bone.
c. fracture of the pelvis (right ischio-pubic) region and right tibia leg bone (lateral-condyle).
d. Fracture of the right 1st metatarsal fast bone.
e. Dislocation of the all five metatarsal foot bones.
f. Deep cut on the left ankle.
g. Blunt object injury to the chest, back and abdomen.
h. Severe bleeding with hemorrhagic shock.
28. On treatment received, Dr. Adede reported that the 1st respondent was admitted for 4 days in ICU and 6 days in the General ward in Mombasa hospital. He underwent left ankle skin grafting, left hip reduction, right femur interlocking metal implant; right tibia screw metal implant, Patella and metatarsals wire metal implants, blood transfusion of 6 pints and shock management. The doctor said that the metal implants would be removed after 2 years at a total estimated cost of KShs 250,000/= and that due to the multiple hip fractures he estimated partial disability at 30%.
29. I note that these injuries and treatment received are in line with those noted by Dr. Udayan Seth in his report dated 16/5/2018, upon discharge of the 1st respondent from Mombasa hospital. I have also seen the P3 form dated 20/9/2018 completed by Dr. Uba A.H. that also indicates these injuries.
30. At the trial court the appellant proposed an award of KShs 250,000/= while the respondent proposed an award of KShs 5,500,000/= as general damages for pain, suffering and loss of amenities.
31. The learned trial magistrate indicated in her judgment that she had considered the authorities submitted by the parties but did not indicate any in her judgment. However, considering the award she made, she appears to have been swayed by the authorities submitted by the 1st respondent where the awards for general damages ranged from KShs 1,700,000/= to KShs 5 million for various injuries.
32. The authorities submitted by the 1st respondent at the trial were as follows:
a. John Joel Koskei v Kenya Power & Lighting Co. Ltd [2005] KEHC 2832 (KLR) where the plaintiff stated that he sustained the following injuries:
- fracture of the skull
- soft tissue injuries on the knee
- 2 broken teeth.
In addition, the plaintiff lost consciousness and only regained the same while at the Pine Breeze Hospital where he had been admitted for 2 months. He was admitted in hospital on three different occasions. Dr. Kiamba deposed that the plaintiff was later referred to a Psychiatrist for a mental checkup due to inappropriate behaviour. According to Dr. Kiamba, the plaintiff sustained injuries of grievous harm and had permanent disability of 30%.
The High Court in 2005 awarded the plaintiff KShs 1,700,000/= general damages for pain, suffering and loss of amenities.
b. Antony Peter Wainaina v Jumba Patrick Oganda & 3 others [2021] KEHC 6726 (KLR) the appellant sustained the following injuries:
i. Injury to the abdominal chest
ii. Rapture of the diaphragm
iii. Perforation of the gut
iv. Fracture of the right femur
v. Fracture of the left humerus bone
vi. Fracture of two right ribs
vii. Fracture of the 10th thoracic vertebrae.
The fracture of the right femur was operated on and fixed with a K-nail. A metal plate was fixed on the left humerus bone. The fracture of the 10th thoracic vertebrae was stabilized using a metal plate. The fractures united very well and the appellant did not have major complaints.
The High Court on appeal enhanced the lower court award of general damages for pain and suffering from Kshs.1,500,000/= to KShs 2,500,000/= the High Court finding that the appellant had a metal plate fixed on his spine and will have to live with it and there were other implants on the femur and humerus bone.
c. Board of Trustees of the Anglican Church of Kenya, Diocese of Marsabit v THW (Suing through her father and guardian ad litem HWG) [2024] KECA 1710 (KLR) the Court of Appeal sustained an award of KShs 5 million awarded by the trial court and affirmed by the High Court on appeal finding that the appellant suffered injuries that culminated in serious disability. She suffered a head injury with inability to walk and as noted by Dr. Mwanzia who produced the medical report, the respondent will require palliative care for life. This condition, as observed by the trial court in its judgment was that the respondent could not get out of the car or talk, and her course of life had completely changed for the worse.
33. The appellant on his part relied on the following cases:
a. Said Abdullahi & another v Alice Wanjira [2016] KEHC 5483 (KLR) where the respondent suffered a fracture of right humerus but Dr. Isaac Nderitu who examined her concluded that she had healed well and that in two years’ time the fracture will heal.
The High Court on appeal found the award of KShs 600,000/= general damages for pain and suffering by the trial court excessive and reduced it to KShs 300,000/=.
b. In Bildad Mwangi Gichuki v TM-AM Construction Group (Africa) [2002] KECA 191 (KLR) the appellant’s injuries were a fractured pelvis, three fractured ribs and segmental fracture of the left femur bone. The Court of Appeal found the award of KShs 250,000/= by the High Court for general damages for pain and suffering inordinately low and substituted it with an award of KShs 400,000/=.
34. Two other authorities only bore case numbers without indicating the full citations or copies thereof for the court’s consideration.
35. In the decisions cited by the appellant in this appeal are none of them has an injury on dislocation of the hip joint and knee joint which learned counsel does not think are serious injuries when indeed they are, considering the medical reports produced in evidence.
36. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“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.”
37. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
38. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
39. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
40. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
41. The decisions cited by learned counsel for the appellant involve less serious injuries. The more serious injuries in those decisions is fracture of the femur thereby overlooking the dislocation to the left hip joint and dislocation to the right knee in this case. They also overlook the extensive treatment the 1st respondent had to receive including multiple surgeries and skin grafting. On the other hand the decisions cited by learned counsel for the 1st respondent involved far more serious injuries than those sustained by the 1st respondent herein. I have looked up the following cases which I consider to bear injuries comparable to those sustained by the 1st respondent.
42. In Gitonga v Kalunge [2022] KEHC 3070 (KLR) the respondent suffered the following injuries:
a. Brain contusion with loss of consciousness for 2 hours and disorientation for 4 days
b. Soft tissue injuries anterior chest
c. Soft tissue injuries left shoulder
d. Left acetabulum fracture with posterior hip dislocation
The High Court on appeal substituted the lower court award of KShs 1000,000/= general damages for pain and suffering with KShs 1,700,000/=.
43. In the case of Devna Pandit v Kennedy Otieno Obara & another [2016] KEHC 6468 (KLR) the plaintiff who had sustained a fracture dislocation left hip with fracture head of femur, a fracture left tibia comminuted and a fracture right face/maxilla, was awarded a sum of Kshs. 2,000,000/= general damages.
44. On my own consideration of the general trend as indicated in the authorities above, including those cited by learned counsels for both parties, I find that the injuries suffered by the 1st respondent although severe did not warrant the award made by the learned trial magistrate. I find that the award was so inordinately high that this court must interfere with it. Accordingly, I set aside the award of KShs 2,500,000/= and substitute it with one of KShs 2,000,000/= general damages for pain, suffering and loss of amenities.
45. Learned counsel for the appellant has made submissions that the trial court awarded damages for future medical expenses when the same were not pleaded and so the award should be set aside. However, there was no ground of appeal on that issue and so this court is unable to consider it.
46. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 2,000,000/=. The decision on award of damages for future medical expenses and special damages will remain as awarded by the trial court.
47. Having found that the appellant is only liable to the extend of 30% it means that out of the total sum of KShs 2,252,550/= the appellant is only liable to pay KShs 675,765/=. The judgment in the trial court was stated to be joint and several against the defendants (appellant and 2nd respondent herein) and the same shall remain.
48. The appeal is successful to that extend.
49. Each party will bear its own costs of the appeal.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 30th day of July 2025 in the presence of:
… for the appellant.
… for the respondent.
Hud: Court assistant.