Introduction
1. In its decision of 27th September 2024, the Trial Court, entered Judgment in favour of the Respondent against the Appellant in the following terms: -
General damages Kshs 1,000,000/=
Special damages Kshs 3,550/=
Less 10% contributory negligence Kshs 100,355/=
Total Kshs 903,195/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 21st February 2025 relying on four (4) grounds of appeal.
3. Its written submissions were dated 14th November 2025 while those of the Respondent were dated 17th December 2025. The Judgment herein is based on the said written submissions, which both parties relied upon in their entirety.
Analysis of the Appeal.
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify.This was stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and the respective parties’ written submissions, it appeared to this court that all the grounds of appeal were related, and the issue that had been placed before it for determination was: -
Whether the Learned Trial Court erred in its findings.
6. The Appellant invoked Sections 107 and 108 of the Evidence Act and asserted that he who alleges must prove. It argued that the Respondent had the onus of proving that the Appellant’s driver was negligent and it cited Treadsetters Tyres Ltd vs John Wekesa Wepukhulu [2010] eKLR to emphasis on this point.
7. It faulted the Trial Court for apportioning more blame on it based on the Respondent’s testimony even after finding that both parties testified that the traffic lights were green. It was emphatic that the Respondent bore the burden of proving that she exercised due care before joining the highway and that the Appellant was negligent. It pointed out that the driver proceeded when the traffic lights on his side were green and, hence, both parties were equally negligent. It referred this court to the case of Hussein Omar Farah vs Lento Agencies [2006] KECA 388 among other cases, where the courts stated that if there was no concrete evidence to determine who was to blame for the accident between two drivers, both were to be held equally to blame.
8. It further submitted that the police officer who testified did not assist the court in determining the circumstances of the case and the police abstract only stated that the matter was pending investigations. It pointed out that there was no independent witness to confirm disobedience of traffic rules hence, the Trial court had no justification to favor the Respondent’s uncorroborated narrative over that of the Appellant. It was emphatic that the Respondent was joining the main highway from a feeder road therefore, she had a duty to yield and give way to vehicles on the highway and if at all she joined the highway when the lights turned green, she had a duty to be cautious.
9. It was also its contention that the fact that the Respondent sustained injuries did not automatically mean that the said injuries were as a result of the Appellant’s driver negligence and it cited Statpack Industries vs James Mbithi Munyao [2005] eKLR, where the court opined that not every injury was as a result of someone’s negligence.
10. It urged this court to dismiss the Respondent’s suit with costs to the Appellant and also urged the court to vary liability to 50:50 in the event this court deemed it not fit to dismiss the suit.
11. In rejoinder, the Respondent referred this court to the case of Khambi and Another vs Mahithi & Another [1968] EA 70, where it was held that an appellate court would not interfere with the apportionment of liability save where such apportionment was manifestly erroneous. She was emphatic that there was no error in apportionment of liability as the Appellant failed to adduce evidence to controvert her evidence before the Trial Court.
12. She stated that she proved her case and the Appellant failed to prove contributory negligence and she cited William Kabogo Gitau vs George Thuo & 2 others [2010] eKLR where the court opined that a case could be determined in favour of a party who persuaded the court that the allegation he had pleaded were more likely than not to be what took place.
13. She also submitted that the award of general damages was justified due to the injuries she sustained and she cited Millicent Atieno Ochuonyo vs Katola Richard HCCC No. 38 of 2012 [2015] eKLR among other cases with comparable injuries and award.
14. Notably, the Respondent filed a plaint dated 10th June 2021 where she averred that she was driving motor vehicle registration no. KCB 159U along Ring road Kileleshwa when motor vehicle registration no. KBJ 606D was carelessly driven and at a very high speed that it lost control and rammed onto her motor vehicle causing her serious bodily injuries. She particularized the particulars of negligence on part of the Appellant’s driver, injuries sustained and particulars of special damages.
15. The Appellant filed a statement of defence dated 21st October 2021 denying the occurrence of the accident, particulars of negligence and damages. It averred that if at all the accident occurred, the Respondent was entirely to blame.
16. The Respondent also filed a reply to the defence dated 27th October 2021 reiterating the contents of her plaint.
17. The matter proceeded for hearing with the Respondent calling three (3) witnesses and the Appellant called one (1) witness.
18. Police Constable Bobby Okari (hereinafter referred to as PW1) confirmed the occurrence of the accident and stated that the investigating officer was police constable Lucas. He said that the matter was still in programmed implementation unit (sic). On cross examination, he stated that he did not have the occurrence book and he could not tell how the accident occurred.
19. Dr. G.K Mwaura (hereinafter referred to as PW2) stated that he examined the Respondent and prepared a medical report and confirmed that the Respondent sustained pelvic fractures.
20. The Respondent testified as PW3 and she adopted her written statement which reiterated her averments in the plaint. She also produced her documents as exhibits. She testified on cross examination that she was on the feeder road and she joined the rod when the lights turned green. There was no police officer at sight and traffic was controlled by traffic lights. She stated that it was at night and there were other vehicles on ring road. She stated on re-examination that she obeyed the traffic lights.
21. Lewis Waiganjo (hereinafter referred to as DW1) adopted his written statement whereby he had admitted hitting the Respondent’s motor vehicle. It was stated in his written statement that there was a junction at ring road and arboretum drive and there were traffic lights controlling traffic at the junction. It was also stated that there were two vehicles ahead of him on ring road and the traffic lights indicated that vehicles on ring road should proceed. From reading of the Appellant’s submissions at the trial court, the Appellant submitted that, the Respondent’s vehicle which was on arboretum road entered the junction after the two vehicles ahead of him had crossed. He tried to swerve to avoid a collision but his motor vehicle hit the Respondent’s vehicle. He asserted that the police went to the scene and blamed the Respondent for causing the accident. The Appellant submitted that Respondent admitted to the police that she did not see the Appellant’s vehicle as she was partially blind on her right eye and blamed the Respondent for disregarding the traffic lights.
22. On cross examination, he maintained that two cars were ahead of him though he did not give their particulars.
Findings
23. This court has considered the occurred of the events of that night, the Appellant had raised many issues in their Submissions at the Trial Court including the fact that the Respondent was blamed for the accident and the fact that she admitted that she was partially blind on her right eye.
24. It is worth noting that the Appellant failed to avail any evidence to support their averments therefore they remain unsupported by evidence. The Issue before me is to establish whether the Trial Court erred in its findings that is why I have taken time to analyze the happenings at the Trial Court.
25. The Appellant during his testimony informed court on cross examination that he was not aware whether the Respondent was injured during the accident, whereas on the other hand the Respondent informed Court that she was taken to the Hospital by an ambulance after an accident. The Appellant also in their Defence at the Trial Court denied that the Respondent suffered any loss and damages and, in the alternative, if at all the Respondent sustained any injuries the Appellant was not liable.
26. At the Trial Court, a medical Doctor testified and informed Court that the Respondent was injured and sustained pelvic fracture. This was not disputed by the Appellant and there was no further medical examination undertaken in the event the Appellant disputed the medical report availed by the Respondent.
27. Mr. Lewis Waiganjo testified and was cross examined. The issue raised by the Appellant at the Trial Court’s submissions that she admitted she couldn’t see well since she is partially blind on her right eye was not raised and no evidence was adduced to that effect. The Appellant omitted to avail such crucial evidence hence denying this Court the opportunity to examine the said evidence. Form the Appellant’s list of witnesses, they had indicated that they were to call a police officer and a doctor but did not.
28. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
29. The principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
30. Looking at the totality of this case am inclined to agree with the Trial Court on the findings and the apportioning of liability. The Appellant in my view is not entitled to the prayers sought, the Trial Court’s findings are sound.
31. I dismiss the Appeal with costs to the Respondent.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 31th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Onyango Learned Counsel for the Appellant.
Kisiangani Learned Counsel for the Respondents
Kendi – Court Assistant.
1. In its decision of 27th September 2024, the Trial Court, entered Judgment in favour of the Respondent against the Appellant in the following terms: -
General damages Kshs 1,000,000/=
Special damages Kshs 3,550/=
Less 10% contributory negligence Kshs 100,355/=
Total Kshs 903,195/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 21st February 2025 relying on four (4) grounds of appeal.
3. Its written submissions were dated 14th November 2025 while those of the Respondent were dated 17th December 2025. The Judgment herein is based on the said written submissions, which both parties relied upon in their entirety.
Analysis of the Appeal.
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify.This was stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and the respective parties’ written submissions, it appeared to this court that all the grounds of appeal were related, and the issue that had been placed before it for determination was: -
Whether the Learned Trial Court erred in its findings.
6. The Appellant invoked Sections 107 and 108 of the Evidence Act and asserted that he who alleges must prove. It argued that the Respondent had the onus of proving that the Appellant’s driver was negligent and it cited Treadsetters Tyres Ltd vs John Wekesa Wepukhulu [2010] eKLR to emphasis on this point.
7. It faulted the Trial Court for apportioning more blame on it based on the Respondent’s testimony even after finding that both parties testified that the traffic lights were green. It was emphatic that the Respondent bore the burden of proving that she exercised due care before joining the highway and that the Appellant was negligent. It pointed out that the driver proceeded when the traffic lights on his side were green and, hence, both parties were equally negligent. It referred this court to the case of Hussein Omar Farah vs Lento Agencies [2006] KECA 388 among other cases, where the courts stated that if there was no concrete evidence to determine who was to blame for the accident between two drivers, both were to be held equally to blame.
8. It further submitted that the police officer who testified did not assist the court in determining the circumstances of the case and the police abstract only stated that the matter was pending investigations. It pointed out that there was no independent witness to confirm disobedience of traffic rules hence, the Trial court had no justification to favor the Respondent’s uncorroborated narrative over that of the Appellant. It was emphatic that the Respondent was joining the main highway from a feeder road therefore, she had a duty to yield and give way to vehicles on the highway and if at all she joined the highway when the lights turned green, she had a duty to be cautious.
9. It was also its contention that the fact that the Respondent sustained injuries did not automatically mean that the said injuries were as a result of the Appellant’s driver negligence and it cited Statpack Industries vs James Mbithi Munyao [2005] eKLR, where the court opined that not every injury was as a result of someone’s negligence.
10. It urged this court to dismiss the Respondent’s suit with costs to the Appellant and also urged the court to vary liability to 50:50 in the event this court deemed it not fit to dismiss the suit.
11. In rejoinder, the Respondent referred this court to the case of Khambi and Another vs Mahithi & Another [1968] EA 70, where it was held that an appellate court would not interfere with the apportionment of liability save where such apportionment was manifestly erroneous. She was emphatic that there was no error in apportionment of liability as the Appellant failed to adduce evidence to controvert her evidence before the Trial Court.
12. She stated that she proved her case and the Appellant failed to prove contributory negligence and she cited William Kabogo Gitau vs George Thuo & 2 others [2010] eKLR where the court opined that a case could be determined in favour of a party who persuaded the court that the allegation he had pleaded were more likely than not to be what took place.
13. She also submitted that the award of general damages was justified due to the injuries she sustained and she cited Millicent Atieno Ochuonyo vs Katola Richard HCCC No. 38 of 2012 [2015] eKLR among other cases with comparable injuries and award.
14. Notably, the Respondent filed a plaint dated 10th June 2021 where she averred that she was driving motor vehicle registration no. KCB 159U along Ring road Kileleshwa when motor vehicle registration no. KBJ 606D was carelessly driven and at a very high speed that it lost control and rammed onto her motor vehicle causing her serious bodily injuries. She particularized the particulars of negligence on part of the Appellant’s driver, injuries sustained and particulars of special damages.
15. The Appellant filed a statement of defence dated 21st October 2021 denying the occurrence of the accident, particulars of negligence and damages. It averred that if at all the accident occurred, the Respondent was entirely to blame.
16. The Respondent also filed a reply to the defence dated 27th October 2021 reiterating the contents of her plaint.
17. The matter proceeded for hearing with the Respondent calling three (3) witnesses and the Appellant called one (1) witness.
18. Police Constable Bobby Okari (hereinafter referred to as PW1) confirmed the occurrence of the accident and stated that the investigating officer was police constable Lucas. He said that the matter was still in programmed implementation unit (sic). On cross examination, he stated that he did not have the occurrence book and he could not tell how the accident occurred.
19. Dr. G.K Mwaura (hereinafter referred to as PW2) stated that he examined the Respondent and prepared a medical report and confirmed that the Respondent sustained pelvic fractures.
20. The Respondent testified as PW3 and she adopted her written statement which reiterated her averments in the plaint. She also produced her documents as exhibits. She testified on cross examination that she was on the feeder road and she joined the rod when the lights turned green. There was no police officer at sight and traffic was controlled by traffic lights. She stated that it was at night and there were other vehicles on ring road. She stated on re-examination that she obeyed the traffic lights.
21. Lewis Waiganjo (hereinafter referred to as DW1) adopted his written statement whereby he had admitted hitting the Respondent’s motor vehicle. It was stated in his written statement that there was a junction at ring road and arboretum drive and there were traffic lights controlling traffic at the junction. It was also stated that there were two vehicles ahead of him on ring road and the traffic lights indicated that vehicles on ring road should proceed. From reading of the Appellant’s submissions at the trial court, the Appellant submitted that, the Respondent’s vehicle which was on arboretum road entered the junction after the two vehicles ahead of him had crossed. He tried to swerve to avoid a collision but his motor vehicle hit the Respondent’s vehicle. He asserted that the police went to the scene and blamed the Respondent for causing the accident. The Appellant submitted that Respondent admitted to the police that she did not see the Appellant’s vehicle as she was partially blind on her right eye and blamed the Respondent for disregarding the traffic lights.
22. On cross examination, he maintained that two cars were ahead of him though he did not give their particulars.
Findings
23. This court has considered the occurred of the events of that night, the Appellant had raised many issues in their Submissions at the Trial Court including the fact that the Respondent was blamed for the accident and the fact that she admitted that she was partially blind on her right eye.
24. It is worth noting that the Appellant failed to avail any evidence to support their averments therefore they remain unsupported by evidence. The Issue before me is to establish whether the Trial Court erred in its findings that is why I have taken time to analyze the happenings at the Trial Court.
25. The Appellant during his testimony informed court on cross examination that he was not aware whether the Respondent was injured during the accident, whereas on the other hand the Respondent informed Court that she was taken to the Hospital by an ambulance after an accident. The Appellant also in their Defence at the Trial Court denied that the Respondent suffered any loss and damages and, in the alternative, if at all the Respondent sustained any injuries the Appellant was not liable.
26. At the Trial Court, a medical Doctor testified and informed Court that the Respondent was injured and sustained pelvic fracture. This was not disputed by the Appellant and there was no further medical examination undertaken in the event the Appellant disputed the medical report availed by the Respondent.
27. Mr. Lewis Waiganjo testified and was cross examined. The issue raised by the Appellant at the Trial Court’s submissions that she admitted she couldn’t see well since she is partially blind on her right eye was not raised and no evidence was adduced to that effect. The Appellant omitted to avail such crucial evidence hence denying this Court the opportunity to examine the said evidence. Form the Appellant’s list of witnesses, they had indicated that they were to call a police officer and a doctor but did not.
28. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
29. The principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
30. Looking at the totality of this case am inclined to agree with the Trial Court on the findings and the apportioning of liability. The Appellant in my view is not entitled to the prayers sought, the Trial Court’s findings are sound.
31. I dismiss the Appeal with costs to the Respondent.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 31th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Onyango Learned Counsel for the Appellant.
Kisiangani Learned Counsel for the Respondents
Kendi – Court Assistant.