1. The Appellant filed Voi CMCC No. E068 of 2023 seeking general damages and special damages for injuries sustained on 27th November 2022 while the Plaintiff was lawfully riding motor cycle registration No. KMGD 482Y along Caltex – Voi road when it was knocked by motor vehicle registration No. KCN 683R Toyota Axio.
2. The Respondent denied the liability. The evidence of the Appellant was that the Respondent hit the motor cycle where the Appellant was riding.
3. The trial court apportioned liability at 50:50% and awarded damages as follows:-
General damages Kshs. 180,000/=
Special damages Kshs. 2,350/=
Total Kshs. 182,350/=
Less 50% contributory negligence
4. The Appellant has appealed on the following grounds:-
(i) That the learned Magistrate erred in law and fact in apportioning liability equally between parties.
(ii) That the learned Magistrate erred in law and fact in disregarding the evidence of the investigation officer who confirmed that the Respondent was to blame for causing the accident.
(iii) That the learned Magistrate erred in law and fact in disregarding the written submissions of the Appellant.
(iv) That the court misdirected itself in directing each party to bear its own costs of the suit.
(v) That the court erred in law and fact in awarding general damages for pain and suffering that were inordinately low compared to the injuries in question.
5. The parties filed written submissions as follows:- The appellant submitted that the trial court erred in equally apportioning liability despite overwhelming evidence indicating the respondent was solely to blame.
6. That the investigation officer's testimony and the police abstract both pointed to the respondent's failure to yield the right of way. The appellant further said that the respondent failed to provide any evidence to support a claim of contributory negligence, as legally required.
7. Furthermore, the trial magistrate improperly inferred contributory negligence without any factual basis, overstepping their role as a neutral arbiter. The appellant asked the appellate the court to find the respondent 100% liable.
8. The appellant also submitted that the general damages awarded for pain and suffering were inordinately low considering the multiple injuries sustained. Citing a similar case where a higher award was affirmed, the appellant requests an increase in general damages to Kshs. 250,000.
9. Finally, the appellant submitted that the trial court erred in failing to award costs of the suit, as Section 27 of the Civil Procedure Act dictates that costs follow the outcome.
10. Given the effort involved in pursuing the claim, the appellant submitted that if the appeal succeeds, they should be awarded the costs of the trial and the appeal, along with interest.
11. In conclusion, the appellant stated that the appeal be allowed, the respondent be held fully liable, general damages be increased to Kshs. 250,000, and costs and interest be awarded as pleaded.
12. The Respondent submitted that the High Court should uphold the Trial Court's judgment regarding liability, general damages, and costs.
13. On liability, the Respondent contended that the Trial Magistrate correctly apportioned blame equally due to contradictory evidence from the Appellant's witnesses and the lack of independent witnesses or a conclusive police report.
14. The Respondent highlighted inconsistencies in the police officer's testimony regarding charges filed and the Appellant's inability to provide clear details about the accident or call known eyewitnesses. Citing legal precedent, the Respondent asserted that in the absence of clear evidence, equal apportionment of liability is appropriate.
15. Regarding general damages, the Respondent submitted that the Ksh 180,000 awarded by the Trial Court was reasonable for the soft tissue injuries sustained by the Appellant.
16. The Respondent emphasized that appellate courts should be slow to interfere with a trial court's assessment unless there was a misapplication of principles or the award was demonstrably erroneous.
17. The Respondent points out that the Appellant's cited authority for a higher award was not presented before the Trial Court and refers to a recent case with a lower award for similar injuries.
18. On costs, the Respondent argued that the Trial Court acted within its discretion to order each party to bear their own costs, given that neither party was fully successful at trial due to the equal apportionment of liability. The Respondent cited a similar case where such an order was upheld on appeal.
19. Therefore, the Respondent urged the High Court to dismiss the appeal with costs.
20. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind.
21. The issues for determination are as follows:-
(i) Whether the trial court was right in apportioning liability at 50:50%.
(ii) Whether the award of damages was inordinately low.
(iii) Whether the trial court was right in ordering each party to bear its own costs of the suit.
(iv) Whether the appeal should be allowed.
22. On the issue of liabilities, I find that the evidence that the Respondent’s motor vehicle hit the motor cycle at the T-junction.
23. The Respondent ought to have given way to the Appellant’s motor cycle.
24. I have examined the evince adduced by both parties at the Trial and it is very clear that the Respondent did not give way.
25. In his statement, the Respondent said he tried to brake when he saw the motor cycle overtaking but it was too late.
26. The Respondent was required to ensure the road was clear before turning at the T-junction.
27. I find that there is no dispute that the investigation officer's testimony and the police abstract both pointed to the respondent's failure to yield the right of way.
28. The respondent failed to provide any evidence to support a claim of contributory negligence, as legally required.
29. There is no evidence that the Appellant contributed to the accident.
30. The finding on liability is set aside and the Respondent held 100% liable.
31. On the issue of damages of Kshs. 180,000/= the trial court took into account comparable cases.
32. The Appellant sustained the following injuries:-
(i) Blunt trauma to the neck.
(ii) Blunt trauma to the left elbow.
(iii) Blunt trauma to the right thumb and right foot.
(iv) Bruises and abrasions on the lower back.
33. I find that the Appellant sustained soft tissue injuries with no permanent incapacity and no broken bones or deep cuts and an award of Kshs. 180,000/= is reasonable. The cases relied on are comparable.
34. I find that the order that each party bears its own costs is not merited. It is trite law that costs follow the event.
35. I set aside the order that each party bears its own costs and I direct that the Respondent bears the costs of both the trial court and this appeal.
36. Orders to issue as follows:-
Liability 100% in favour of the Appellant against the Respondent
General damages for pain and suffering Kshs. 180,000/=
Special damages Kshs. 2,350/=
Total Kshs. 182,350/=
37. Judgment be and is hereby entered in favour of the Appellant against the Respondent in the sum of Kshs. 182,350/= plus costs and interest at court rates from the date of judgment of the trial court until payment in full.
38. The Respondent to bear the costs of the appeal and of the original suit.
Dated, signed and delivered this 9th day of May 2025 virtually via MT at Voi High Court.
ASENATH ONGERI
JUDGE
In the presence of:-
Court Assistant: Maina/Millicent
2. The Respondent denied the liability. The evidence of the Appellant was that the Respondent hit the motor cycle where the Appellant was riding.
3. The trial court apportioned liability at 50:50% and awarded damages as follows:-
General damages Kshs. 180,000/=
Special damages Kshs. 2,350/=
Total Kshs. 182,350/=
Less 50% contributory negligence
4. The Appellant has appealed on the following grounds:-
(i) That the learned Magistrate erred in law and fact in apportioning liability equally between parties.
(ii) That the learned Magistrate erred in law and fact in disregarding the evidence of the investigation officer who confirmed that the Respondent was to blame for causing the accident.
(iii) That the learned Magistrate erred in law and fact in disregarding the written submissions of the Appellant.
(iv) That the court misdirected itself in directing each party to bear its own costs of the suit.
(v) That the court erred in law and fact in awarding general damages for pain and suffering that were inordinately low compared to the injuries in question.
5. The parties filed written submissions as follows:- The appellant submitted that the trial court erred in equally apportioning liability despite overwhelming evidence indicating the respondent was solely to blame.
6. That the investigation officer's testimony and the police abstract both pointed to the respondent's failure to yield the right of way. The appellant further said that the respondent failed to provide any evidence to support a claim of contributory negligence, as legally required.
7. Furthermore, the trial magistrate improperly inferred contributory negligence without any factual basis, overstepping their role as a neutral arbiter. The appellant asked the appellate the court to find the respondent 100% liable.
8. The appellant also submitted that the general damages awarded for pain and suffering were inordinately low considering the multiple injuries sustained. Citing a similar case where a higher award was affirmed, the appellant requests an increase in general damages to Kshs. 250,000.
9. Finally, the appellant submitted that the trial court erred in failing to award costs of the suit, as Section 27 of the Civil Procedure Act dictates that costs follow the outcome.
10. Given the effort involved in pursuing the claim, the appellant submitted that if the appeal succeeds, they should be awarded the costs of the trial and the appeal, along with interest.
11. In conclusion, the appellant stated that the appeal be allowed, the respondent be held fully liable, general damages be increased to Kshs. 250,000, and costs and interest be awarded as pleaded.
12. The Respondent submitted that the High Court should uphold the Trial Court's judgment regarding liability, general damages, and costs.
13. On liability, the Respondent contended that the Trial Magistrate correctly apportioned blame equally due to contradictory evidence from the Appellant's witnesses and the lack of independent witnesses or a conclusive police report.
14. The Respondent highlighted inconsistencies in the police officer's testimony regarding charges filed and the Appellant's inability to provide clear details about the accident or call known eyewitnesses. Citing legal precedent, the Respondent asserted that in the absence of clear evidence, equal apportionment of liability is appropriate.
15. Regarding general damages, the Respondent submitted that the Ksh 180,000 awarded by the Trial Court was reasonable for the soft tissue injuries sustained by the Appellant.
16. The Respondent emphasized that appellate courts should be slow to interfere with a trial court's assessment unless there was a misapplication of principles or the award was demonstrably erroneous.
17. The Respondent points out that the Appellant's cited authority for a higher award was not presented before the Trial Court and refers to a recent case with a lower award for similar injuries.
18. On costs, the Respondent argued that the Trial Court acted within its discretion to order each party to bear their own costs, given that neither party was fully successful at trial due to the equal apportionment of liability. The Respondent cited a similar case where such an order was upheld on appeal.
19. Therefore, the Respondent urged the High Court to dismiss the appeal with costs.
20. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind.
21. The issues for determination are as follows:-
(i) Whether the trial court was right in apportioning liability at 50:50%.
(ii) Whether the award of damages was inordinately low.
(iii) Whether the trial court was right in ordering each party to bear its own costs of the suit.
(iv) Whether the appeal should be allowed.
22. On the issue of liabilities, I find that the evidence that the Respondent’s motor vehicle hit the motor cycle at the T-junction.
23. The Respondent ought to have given way to the Appellant’s motor cycle.
24. I have examined the evince adduced by both parties at the Trial and it is very clear that the Respondent did not give way.
25. In his statement, the Respondent said he tried to brake when he saw the motor cycle overtaking but it was too late.
26. The Respondent was required to ensure the road was clear before turning at the T-junction.
27. I find that there is no dispute that the investigation officer's testimony and the police abstract both pointed to the respondent's failure to yield the right of way.
28. The respondent failed to provide any evidence to support a claim of contributory negligence, as legally required.
29. There is no evidence that the Appellant contributed to the accident.
30. The finding on liability is set aside and the Respondent held 100% liable.
31. On the issue of damages of Kshs. 180,000/= the trial court took into account comparable cases.
32. The Appellant sustained the following injuries:-
(i) Blunt trauma to the neck.
(ii) Blunt trauma to the left elbow.
(iii) Blunt trauma to the right thumb and right foot.
(iv) Bruises and abrasions on the lower back.
33. I find that the Appellant sustained soft tissue injuries with no permanent incapacity and no broken bones or deep cuts and an award of Kshs. 180,000/= is reasonable. The cases relied on are comparable.
34. I find that the order that each party bears its own costs is not merited. It is trite law that costs follow the event.
35. I set aside the order that each party bears its own costs and I direct that the Respondent bears the costs of both the trial court and this appeal.
36. Orders to issue as follows:-
Liability 100% in favour of the Appellant against the Respondent
General damages for pain and suffering Kshs. 180,000/=
Special damages Kshs. 2,350/=
Total Kshs. 182,350/=
37. Judgment be and is hereby entered in favour of the Appellant against the Respondent in the sum of Kshs. 182,350/= plus costs and interest at court rates from the date of judgment of the trial court until payment in full.
38. The Respondent to bear the costs of the appeal and of the original suit.
Dated, signed and delivered this 9th day of May 2025 virtually via MT at Voi High Court.
ASENATH ONGERI
JUDGE
In the presence of:-
Court Assistant: Maina/Millicent