Coram: Before Justice R. Nyakundi
M/S Kimondo Gachoka & Co. Advocates
M/S Ngala Awino & Co. Advocates
INTRODUCTION
1. This is a first appeal from the judgment of the Principal Magistrate's Court at Vihiga in Civil Suit No. 125 of 2019, by which the learned trial Magistrate found the Appellants jointly and severally liable in negligence to the extent of one hundred per cent and awarded the Respondent Kshs. 250,000 as general damages, together with the costs of the suit and interest at Court rates from the date of judgment.
2. The claim arose out of a road traffic accident which the Respondent alleged occurred on 13th June 2019 at Shamakhokho along the Kapsabet–Chavakali road, in which motor vehicle registration number
KCP 083V, an Isuzu bus, lost control and overturned. The Respondent's case was that he was a lawful fare-paying passenger in that bus and was injured. The Appellants' case, as it was ultimately advanced, was not merely that no negligence was proved but that the Respondent was never in the bus at all and that his claim was a fabrication.
3. That contention, whether the claim is genuine, is the true centre of gravity of this appeal, and it is where I shall spend most of the analysis herein under:
THE CASE BEFORE THE TRIAL COURT
4. By a plaint filed on 26th July 2019, the Respondent sued both Appellants, pleading that the 1st Appellant was the actual owner and the 2nd Appellant the registered owner of motor vehicle registration number KCP 083V. He pleaded that on 13th June 2019 he was travelling aboard that vehicle along the Kapsabet–Chavakali road when it was so negligently, carelessly or recklessly driven by the Appellants' driver, servant or agent that it lost control and overturned at Shamakhokho, whereby he suffered severe bodily injuries. Seven particulars of negligence were pleaded, and eight particulars of injury: tenderness and bruising of the left ear; a swollen and bruised head; neck tenderness; backache; chest tenderness; a swollen and dislocated left index finger; tenderness and bruising of the right shoulder and elbow joints; and tenderness and bruising of the knee joints and legs. He prayed for general damages, costs and interest. He did not plead special damages
5. By a statement of defence dated 18th August 2019, the Appellants denied the claim in its entirety. They denied that the 1st Appellant was the owner of the vehicle; denied the occurrence of the accident as pleaded; denied every particular of negligence; and denied the injuries. In the alternative they pleaded contributory negligence, with five particulars, together with volenti non fit injuria and inevitable accident, and they denied the applicability of res ipsa loquitur.
6. Two features of that pleading call for notice at this stage. The first is that the particulars of contributory negligence are drawn in the feminine — an allegation that the Respondent failed to apply a seatbelt "for her own safety" and distracted the driver "by engaging him in endless banter" — which suggests a formulaic pleading not adapted to the facts of this case. The second, and far more important, is that nowhere in the statement of defence is there any allegation of fraud, forgery, fabrication, or that the Respondent's documents were unlawfully procured. That case first appears, so far as the record discloses, in a supplementary list of documents dated 26th October 2022 listing a "Revocation letter dated 08/04/2020", and thereafter in evidence and in submissions. The defence was never amended.
THE EVIDENCE AT THE TRIAL
7. The Respondent called three witnesses. The Appellants called one.
8. PW1, Gerald Owiti Omondi, adopted his statement dated 24th July 2019 as his evidence in chief and produced his documents as Plaintiff's Exhibits 1 to 6: his national identity card, the police abstract, the P3 form, the discharge summary together with the interim invoice and patient release letter from Vihiga County Referral Hospital, the demand letter dated 25th June 2019, and a copy of records from the Registrar of Motor Vehicles. He testified that he was admitted in hospital for two days and blamed the driver for driving recklessly.
9. In cross-examination he gave his identity card number, confirmed 13th June 2019 as the date of the accident, and stated that he had no receipt for the fare. He said he was seated in the middle of the vehicle and could not see the front because the bus was full; that the police arrived at the scene and took the injured to hospital; and that he could not say how long they took because he was unconscious. He was confronted with the letter from Vihiga Police Station stating that the records under OB No. 13 had been perused and that he did not appear there. His answer was direct: it was untrue that he was not involved. He added that he had not healed, still felt pain in the chest, hands and legs, and was still undergoing treatment, though he had brought no further treatment documents. In re-examination he confirmed that he was in the vehicle,
was injured, was treated and discharged after two days, and was issued with a Police Abstract and a P3 form.
10. PW2, George Mwaita, a Senior Clinical Officer at Ahero Hospital, testified that on 5th July 2019 he examined the Respondent, who had been involved in a road traffic accident on 13th June 2019 and had been treated at Vihiga County Referral Hospital, having been admitted and discharged on 14th June 2019. He found bruises on the left ear and the head, backache, chest pains, a swollen and dislocated left index finger, and bruises on the shoulder, elbow and knee joints. He prescribed analgesics and physiotherapy and completed the P3 form on 5th July 2019. He said he also relied on the treatment notes from Vihiga County Referral Hospital. He produced the P3 form and the hospital documents as Plaintiff's Exhibits 3 and 4.
11. In cross-examination PW2 said that he is a Clinician and not a Doctor; that the P3 form originated from Vihiga Police Station and he completed it at Ahero, some distance away; that he was unaware that the P3 form had been revoked; and that the Respondent had sustained a minor head injury. He said he conducted physiotherapy and noted a dislocation which could be detected without X-rays, that he has twelve years' experience, and that the Respondent would by then have healed.
12. PW3, No. 104937 Police Constable Mutunga, attached to the traffic Department at Vihiga Police Station, produced the police abstract issued by that Station in respect of an accident which occurred on 13th June 2019 in which motor vehicle KCP 083V, an Isuzu bus, lost control and fell, the Respondent having boarded that vehicle and sustained injuries, and having been issued with a P3 form and a police abstract. She named PC Mwinzi as the Investigating Officer, who had since been transferred.
13. PW3 dealt candidly with the difficulty in the Respondent's case. She told the Court that the Respondent's name did not appear in the Occurrence Book, although there were several entries. She said she was aware of the letter dated 8th April 2020 and of what had led the Base Commander to write it, and that the letter emanated from Vihiga Police Station. Her evidence, however, was that the omission was not the Respondent's fault; that where there are many injured persons a name may be left out; that it was the duty of the officer to capture the name and ensure that it was entered in the Occurrence Book; and, in terms, that the police took responsibility for the omission. She noted that the letter was handwritten rather than typed and that its author had not come to Court. In re-examination she repeated that the Respondent was involved in the accident but his name was omitted, and that this was not his fault.
14. DW1, No. 59708 Corporal John Koech, also attached to Vihiga Police Station on traffic duties, testified that an accident occurred at 6.00 a.m. involving motor vehicle KCP 083V, an Isuzu bus belonging to the 1st Appellant, which was being driven from Nairobi to Kakamega and which lost control and landed in a ditch on reaching Shamakhokho. The passengers sustained injuries and the police at the scene came with a list of the injured. He said the Respondent was not among them, his name not appearing in the Occurrence Book. He produced the letter of the Base Commander dated 8th April 2020 as Defence Exhibit 1, over the objection of Counsel for the Respondent, the trial Court having ruled that as PW3 and DW1 were from the same station the Court would consider their evidence.
15. In cross-examination DW1 made a series of important concessions. He was not the Investigating Officer; PC Mwinzi was. He did not visit the scene of the accident. He had not produced Occurrence Book No. 13 in Court. His position was that he had the authority of the Base Commander to produce the letter. In re-examination he said that he had perused the Occurrence Book and the police file, and the defence case was closed.
THE JUDGMENT APPEALED AGAINST
16. The learned trial Magistrate framed five issues: ownership of the vehicle; whether an accident occurred on 13th June 2019 involving KCP 083V and the Respondent as a lawful fare-paying passenger; who was to blame
and to what degree; the injuries and the appropriate quantum; and costs.
17. On ownership he relied on the copy of records, Plaintiff's Exhibit 6, and found the issue in the affirmative. On the occurrence of the accident he observed that PW1 and DW1 were at one that the accident occurred at Shamakhokho along the Kapsabet–Chavakali road when the vehicle lost control and overturned, and found that issue in the affirmative also.
18. On liability he applied Embu Public Road Services Limited v Riimi [1968] EA 22, holding that where an accident occurs and no explanation is given by the Defendant which could exonerate him, the Court is at liberty to apply res ipsa loquitur. He reasoned that a passenger who boards a vehicle expects to be carried safely to his destination; that the Respondent did not arrive safely; and that had the bus been carefully driven it would not have overturned.
19. On the contest about the Occurrence Book, the learned Magistrate held that DW1 testified on the basis of the Occurrence Book but neither produced an extract of it nor led the Court through it; that DW1 was not the Investigating Officer, did not visit the scene, did not prepare or complete the abstract, and carried out no investigation to establish fraud, relying entirely on records availed to him. He characterised DW1's testimony as hearsay and uncorroborated. He further held that the unilateral revocation of the abstract was unlawful and malicious, no proper investigation having been carried out and the Investigating Officer not having been consulted, and that the Respondent had been denied an opportunity to be heard. Having had the advantage of seeing the demeanour of the witnesses, he preferred the Respondent's evidence, which he described as overwhelming, to what he called the stand-alone evidence of the defence, and found the medical evidence uncontroverted.
20. He accordingly held the Appellants jointly and severally liable to the extent of one hundred per cent. On quantum, having referred to an authority in which an award of Kshs. 300,000 for soft tissue injuries and a dislocation was upheld on appeal, and to Pitalis Opiyo Ager v Daniel
Otieno Owino and Another [2020] eKLR, in which an award of Kshs. 200,000 was upheld for chest injuries and a dislocation of the small toe, and taking into account inflationary trends, the nature of the injuries and the general trend of awards, he assessed general damages at Kshs. 250,000. He declined to award special damages, none having been pleaded or proved.
THE APPEAL
21. The memorandum of appeal dated 5th February 2025 raises four grounds. In summary, it is said that the learned Magistrate erred: in awarding Kshs. 250,000 as general damages without considering the circumstances of the case; in misdirecting himself as to the extent and value of the Respondent's injuries and thereby in his assessment of damages, the treatment notes having been flagged as not genuine; in failing to consider the evidence tendered by the Appellants; and in failing to consider the Appellants' submissions and authorities, arriving at an unjustified decision on quantum. The Appellants pray that the appeal be allowed, the decree set aside, that this Court re-evaluate the evidence and determine whether the claim is genuine, and that they have the costs of the appeal.
22. In their written submissions dated 4th May 2026 the Appellants contend that the Respondent failed to prove that he was a passenger in KCP 083V; that DW1 produced a verification letter stating that he had not issued the Respondent with an abstract or a P3 form, and a letter revoking the abstract; that the Respondent was not listed in the Occurrence Book; that no independent witness was called to support his account; and that the documents produced were illegally obtained and the claim fraudulent. They invoked Sections 108 and 109 of the Evidence Act and Eastern Produce (K) Limited v Christopher Atiado Osiro, Eldoret High Court Civil Appeal No. 43 of 2001, citing Kiema Mutuku v Kenya Cargo Hauling Services Limited [1991] 2 KAR 258 for the proposition that there is as yet no liability without fault in Kenya and that a Plaintiff must prove some negligence where the claim is founded on negligence.
23. For the Respondent it is submitted that the award was not inordinately high and does not meet the threshold in Kemfro Africa Limited t/a "Meru Express Services (1976)" and Another v Lubia and Another (No. 2); that the trial Court considered the evidence of both sides, as the judgment itself demonstrates; that DW1 admitted he was not the investigating officer, did not visit the scene and did not produce the Occurrence Book; and that PW3 confirmed the Respondent's involvement and explained that the omission of his name was the fault of the duty officer. The Respondent prays that the appeal be dismissed with costs.
PRELIMINARY OBSERVATIONS ON THE RECORD
24. Three matters of form may be disposed of shortly. First, the suit number is given variously in the record as Vihiga PMCC No. 125 of 2019 and as PMCC No. E125 of 2019, and this appeal is cited both as Civil Appeal No. E04 of 2025 and as Civil Appeal No. E004 of 2025. The correct references are Vihiga Principal Magistrate's Court Civil Suit No. 125 of 2019 and this Civil Appeal No. E004 of 2025. The variations are clerical and have misled nobody.
25. Secondly, the memorandum of appeal refers throughout to "the Appellant" in the singular although there are two Appellants, and it was drawn by one firm while the submissions were filed by another sharing the same address. Neither circumstance affects the competence of the appeal, and no objection was taken.
26. Thirdly, judgment was delivered on 21st January 2025 and the memorandum of appeal was filed on 6th February 2025, well within time. The appeal is properly before me.
27. A fourth matter is of substance rather than form and I record it here because it recurs below. The record refers to the police witness called by the Respondent as PW3 and, in one place in the proceedings, gives her first name as Patrick, while the Plaintiff's submissions, the trial judgment and the Appellants' own submissions all refer to her as PC Damaris Mutunga and to her in the feminine. Her force number, No. 104937, is constant throughout. I am satisfied that these references are
to one and the same officer, and I refer to her simply as PW3 or as PC Mutunga.
THE DUTY OF THIS COURT ON A FIRST APPEAL
28. In a first appeal this Court is under a duty to reconsider the evidence tendered before the trial Court, to evaluate it afresh and to draw its own conclusions, always bearing in mind that it neither saw nor heard the witnesses and must make due allowance in that respect: Selle and Another v Associated Motor Boat Company Limited [1968] EA 123; Peters v Sunday Post Limited [1958] EA 424. The power is conferred by Section 78 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and was restated in Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212, upon which the Appellants themselves rely.
29. The correlative restraint is equally settled. In Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982–88) 1 KAR 278 the Court of Appeal held that a first appellate Court will hesitate before reversing findings of fact, and will do so only where the trial Court failed to take account of particular circumstances or probabilities, or where the impression based on the demeanour of a witness is inconsistent with the evidence generally. In Abok James Odera t/a A. J. Odera and Associates v John Patrick Machira t/a Machira and Company Advocates [2013] eKLR the Court restated the obligation to subject the whole of the evidence to a fresh and exhaustive scrutiny.
30. That restraint has real work to do in this appeal. The determination under challenge turned substantially upon the trial Court's assessment of two competing bodies of evidence about the same event, given by two Police Officers from the same Station, and upon its appraisal of the credibility of the Respondent when his honesty was squarely put in issue. The learned Magistrate expressly recorded that he had the advantage of seeing the demeanour of the witnesses. I have not. I have accordingly examined the record with care to see whether the conclusion he reached is one that the evidence, objectively assessed, could support, and whether he misdirected himself in law.
ISSUES FOR DETERMINATION
31. The issues which arise are:
a) Whether the Respondent proved, on a balance of probabilities, that he was a passenger in motor vehicle registration number KCP 083V on 13th June 2019 and was injured in the accident of that date — that is to say, whether the claim is genuine;
b) If so, whether the learned trial Magistrate was right to hold the Appellants liable in negligence to the extent of one hundred per cent;
c) Whether the award of Kshs. 250,000 as general damages is one with which this Court ought to interfere;
d) Whether the trial Court failed to consider the Appellants' evidence, submissions and authorities; and
e) Who should bear the costs.
WHETHER THE CLAIM IS GENUINE
(i) How the issue arises, and on whom the burden lies
32. The burden of proving that he was a passenger in the bus and was injured lay, and remained throughout, upon the Respondent. Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya, place it there, and nothing that the Appellants did or failed to do could shift it. To that extent the Appellants' submission is unimpeachable, and the authorities they cite — Eastern Produce (K) Limited v Christopher Atiado Osiro and, within it, Kiema Mutuku v Kenya Cargo Hauling Services Limited [1991] 2 KAR 258 — correctly state the law.
33. But the Appellants did not confine themselves to putting the Respondent to proof. They advanced a positive case of their own: that the abstract and the P3 form were illegally obtained, that they were null and void, and that the claim is fraudulent. Their submissions to this Court put it in terms, urging that the suit be dismissed "for being fraudulent". An allegation of that character carries its own consequences in pleading and in proof, and it is convenient to deal with those first.
34. It is elementary that fraud must be specifically pleaded and particularised. Order 2 Rule 10 of the Civil Procedure Rules, 2010 so requires. In Vijay Morjaria v Nansingh Madhusingh Darbar and Another [2000] eKLR the Court of Appeal held that it is settled law that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading, the acts alleged to be fraudulent being set out and then stated to be fraudulent. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR the Court held that fraudulent conduct must be distinctly alleged and distinctly proved, and that it is not allowable to leave fraud to be inferred from the facts.
35. The standard of proof is also higher than the ordinary civil standard. In Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314 it was held that allegations of fraud must be strictly proved, and that although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
36. The statement of defence in this case pleads no fraud at all. It does not allege that the abstract or the P3 form was forged, procured by deceit, or otherwise unlawfully obtained. It does not allege that the Respondent was never in the vehicle; it puts him to strict proof that he was. The Appellants were content to introduce the revocation letter through a supplementary list of documents filed more than three years after the defence, and to make their case in evidence and submissions. They cannot in those circumstances ask this Court, or the Court below, to find fraud established. It was not open to the trial Court to make such a finding, and it is not open to me.
37. I should not be understood as saying that the Appellants were thereby disabled from challenging the Respondent's account. They were entitled, as any Defendant is, to test his evidence and to invite the Court to disbelieve him. The distinction matters because it determines what has to be shown. The question is not whether the Appellants proved fraud — they did not plead it and so cannot — but whether, on the whole of the evidence, the Respondent discharged the ordinary civil burden of proving that he was in the bus and was hurt. I turn to that question.
(ii) The Occurrence Book
38. The Appellants' case stands or falls on the proposition that the Respondent's name is absent from the Occurrence Book at Vihiga Police Station. That proposition was advanced by two routes: the oral evidence of DW1 and the letter of the Base Commander.
39. The first and most striking feature of the record is that the Occurrence Book was never produced. It was listed in the Appellants' own list of documents, both in the original list of 18th August 2019 and again in the supplementary list of 26th October 2022, on each occasion described as the "Police File/OB". It was never tendered. DW1, a serving officer of the very station which holds it, was asked in cross-examination and confirmed that he had not produced Occurrence Book No. 13 in Court
40. The Evidence Act requires that the contents of a document be proved by production of the document itself, secondary evidence of its contents being admissible only in the excepted cases for which the Act provides. No attempt was made to bring this case within any of those exceptions. The Appellants asked the trial Court, and now ask this Court, to find as a fact that a name does not appear in a book which neither Court has seen, on the strength of the assertion of a witness who was not the author of the book, who did not make the relevant entries, who was not at the scene, and who was not the Investigating Officer.
41. That is a considerable thing to ask. It is the more considerable because the document was, on the Appellants' own case, within the control of their witness's employer and had been in their contemplation since 2019. Where a party asserts the contents of a document which it is uniquely placed to produce, and does not produce it, a Court is entitled to weigh that omission. I do not need to go so far as to draw an adverse inference. It is enough to say that the assertion, unsupported by the document, was of slight probative value, and the learned trial Magistrate was entitled so to treat it.
42. There is a further difficulty with DW1's evidence which appears not to have been pressed below but which is plain on the record. His account of the date and time of the accident was that it occurred on 14th June 2019 at 6.00 a.m., and he identified the relevant entry as Occurrence Book No. 13 of 14th June 2019. Every other source in the case, including the letter which he himself produced, places the accident on 13th June 2019, that letter recording in terms that the accident "occurred on 13/06/2019" and was reported under OB 13. A witness whose central evidence is that a particular name is missing from a particular entry, and who is mistaken about which day that entry concerns, does not inspire confidence.
(iii) The letter of 8th April 2020
43. The letter produced as Defence Exhibit 1 is on the letterhead of Vihiga Police Station and is dated 8th April 2020. It is addressed not to the Court, nor to the Respondent, but to the Managing Director of Directline Assurance Company Limited. It opens by referring to that company's own letter of the same date. It states that the records of the accident of 13th June 2019, reported under OB 13, had been perused, that the Respondent was not involved as he does not appear in the Occurrence Book, and that any P3 form and police abstract issued to him are null and void and cannot be used as proof of involvement. It bears the stamp and signature of the Base Commander.
44. Three things follow. The first is that the Base Commander who wrote the letter never came to Court. His assertion that he perused the records and that a particular name was not there is, in the mouth of DW1, an assertion of the truth of what another person said out of Court. Whether it is labelled hearsay or characterised as secondary evidence of the contents of a document, the vice is the same: the maker was not before the Court, was not on oath, and could not be cross-examined about how thorough his perusal was, whether he considered the possibility of omission, or on what basis he pronounced documents issued by his own station to be void. PW3 made the point herself when she observed that
the letter was handwritten rather than typed and that its author had not come to Court.
45. The second is that the letter was written on the same day as, and expressly in answer to, an inquiry from an insurance company. That does not make it worthless, but it does mean that it was not the product of any independent police investigation into a suspected false claim. No file was opened. No statement was taken from the Respondent. The Investigating Officer, PC Mwinzi, was not consulted so far as the record shows. Nobody was charged. DW1 confirmed that he carried out no investigation of his own.
46. The third is that the letter purports to nullify documents on which a citizen's claim depends, without notice to him and without any opportunity for him to be heard. The learned trial Magistrate was troubled by this, and Article 47 of the Constitution, which guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, lends his concern support.
47. I must, however, part company with the learned Magistrate in one respect. He went on to find that the revocation was "unlawful and malicious". That was, with respect, a step too far. The Base Commander was not a party to the suit, gave no evidence, and had no opportunity to answer an allegation of malice; and no such case was pleaded against him. A finding of malice against a public officer who is not before the Court and who has not been heard should not be made. I set that finding aside. What survives, and what is sufficient, is the narrower and unimpeachable proposition that the letter was untested, that its author was not called, and that it could not by itself displace sworn evidence given in Court and subjected to cross-examination.
48. I would add, for completeness, that the learned Magistrate's use of the word "hearsay" to describe DW1's evidence as a whole was not entirely apt, since DW1 also gave direct evidence of matters within his own knowledge. But the substance of the criticism — that the material parts of his evidence depended on documents he did not produce and on a
letter he did not write — was sound, and the conclusion drawn from it was correct.
(iv) The evidence of PW3
49. Against the letter stood the sworn testimony of PC Mutunga, an Officer of the very same station, who produced the Police Abstract, told the Court that the Respondent was involved in the accident, and explained the absence of his name from the Occurrence Book as an error of the duty officer for which the police accepted responsibility. She was not the Appellants' witness, but neither was she a witness with any personal stake in the outcome. She was cross-examined, and her account was not shaken.
50. It is important to be precise about what she said, because the Appellants' submissions to this Court do not accurately reflect it. Those submissions assert that PW2, PC Mutunga, "confirmed that she was aware of the letter revoking the Abstract and that there was no further OB listing the Respondent as having been among those injured", and conclude that "both witnesses for the Appellant and Respondent confirmed that the Respondent was never involved in the accident by virtue of not being listed in the OB".
51. That is not what the Officer said. She agreed that the name was not in the Occurrence Book, and she agreed that she was aware of the letter. She did not agree that the Respondent was never involved. On the contrary, she said the opposite, twice: in cross-examination, that it was not the Respondent's fault that his name did not appear and that it was the duty of the Officer to capture it; and in re-examination, that the Respondent was involved in an accident but his name was omitted, and that this was not his fault. To convert an admission that a record is incomplete into a confirmation that an event never occurred is to mistake the absence of evidence for evidence of absence. The submission cannot be accepted.
52. The learned Magistrate was therefore confronted with two Officers of the same station giving
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M/S Kimondo Gachoka & Co. Advocates
M/S Ngala Awino & Co. Advocates
INTRODUCTION
1. This is a first appeal from the judgment of the Principal Magistrate's Court at Vihiga in Civil Suit No. 125 of 2019, by which the learned trial Magistrate found the Appellants jointly and severally liable in negligence to the extent of one hundred per cent and awarded the Respondent Kshs. 250,000 as general damages, together with the costs of the suit and interest at Court rates from the date of judgment.
2. The claim arose out of a road traffic accident which the Respondent alleged occurred on 13th June 2019 at Shamakhokho along the Kapsabet–Chavakali road, in which motor vehicle registration number
KCP 083V, an Isuzu bus, lost control and overturned. The Respondent's case was that he was a lawful fare-paying passenger in that bus and was injured. The Appellants' case, as it was ultimately advanced, was not merely that no negligence was proved but that the Respondent was never in the bus at all and that his claim was a fabrication.
3. That contention, whether the claim is genuine, is the true centre of gravity of this appeal, and it is where I shall spend most of the analysis herein under:
THE CASE BEFORE THE TRIAL COURT
4. By a plaint filed on 26th July 2019, the Respondent sued both Appellants, pleading that the 1st Appellant was the actual owner and the 2nd Appellant the registered owner of motor vehicle registration number KCP 083V. He pleaded that on 13th June 2019 he was travelling aboard that vehicle along the Kapsabet–Chavakali road when it was so negligently, carelessly or recklessly driven by the Appellants' driver, servant or agent that it lost control and overturned at Shamakhokho, whereby he suffered severe bodily injuries. Seven particulars of negligence were pleaded, and eight particulars of injury: tenderness and bruising of the left ear; a swollen and bruised head; neck tenderness; backache; chest tenderness; a swollen and dislocated left index finger; tenderness and bruising of the right shoulder and elbow joints; and tenderness and bruising of the knee joints and legs. He prayed for general damages, costs and interest. He did not plead special damages
5. By a statement of defence dated 18th August 2019, the Appellants denied the claim in its entirety. They denied that the 1st Appellant was the owner of the vehicle; denied the occurrence of the accident as pleaded; denied every particular of negligence; and denied the injuries. In the alternative they pleaded contributory negligence, with five particulars, together with volenti non fit injuria and inevitable accident, and they denied the applicability of res ipsa loquitur.
6. Two features of that pleading call for notice at this stage. The first is that the particulars of contributory negligence are drawn in the feminine — an allegation that the Respondent failed to apply a seatbelt "for her own safety" and distracted the driver "by engaging him in endless banter" — which suggests a formulaic pleading not adapted to the facts of this case. The second, and far more important, is that nowhere in the statement of defence is there any allegation of fraud, forgery, fabrication, or that the Respondent's documents were unlawfully procured. That case first appears, so far as the record discloses, in a supplementary list of documents dated 26th October 2022 listing a "Revocation letter dated 08/04/2020", and thereafter in evidence and in submissions. The defence was never amended.
THE EVIDENCE AT THE TRIAL
7. The Respondent called three witnesses. The Appellants called one.
8. PW1, Gerald Owiti Omondi, adopted his statement dated 24th July 2019 as his evidence in chief and produced his documents as Plaintiff's Exhibits 1 to 6: his national identity card, the police abstract, the P3 form, the discharge summary together with the interim invoice and patient release letter from Vihiga County Referral Hospital, the demand letter dated 25th June 2019, and a copy of records from the Registrar of Motor Vehicles. He testified that he was admitted in hospital for two days and blamed the driver for driving recklessly.
9. In cross-examination he gave his identity card number, confirmed 13th June 2019 as the date of the accident, and stated that he had no receipt for the fare. He said he was seated in the middle of the vehicle and could not see the front because the bus was full; that the police arrived at the scene and took the injured to hospital; and that he could not say how long they took because he was unconscious. He was confronted with the letter from Vihiga Police Station stating that the records under OB No. 13 had been perused and that he did not appear there. His answer was direct: it was untrue that he was not involved. He added that he had not healed, still felt pain in the chest, hands and legs, and was still undergoing treatment, though he had brought no further treatment documents. In re-examination he confirmed that he was in the vehicle,
was injured, was treated and discharged after two days, and was issued with a Police Abstract and a P3 form.
10. PW2, George Mwaita, a Senior Clinical Officer at Ahero Hospital, testified that on 5th July 2019 he examined the Respondent, who had been involved in a road traffic accident on 13th June 2019 and had been treated at Vihiga County Referral Hospital, having been admitted and discharged on 14th June 2019. He found bruises on the left ear and the head, backache, chest pains, a swollen and dislocated left index finger, and bruises on the shoulder, elbow and knee joints. He prescribed analgesics and physiotherapy and completed the P3 form on 5th July 2019. He said he also relied on the treatment notes from Vihiga County Referral Hospital. He produced the P3 form and the hospital documents as Plaintiff's Exhibits 3 and 4.
11. In cross-examination PW2 said that he is a Clinician and not a Doctor; that the P3 form originated from Vihiga Police Station and he completed it at Ahero, some distance away; that he was unaware that the P3 form had been revoked; and that the Respondent had sustained a minor head injury. He said he conducted physiotherapy and noted a dislocation which could be detected without X-rays, that he has twelve years' experience, and that the Respondent would by then have healed.
12. PW3, No. 104937 Police Constable Mutunga, attached to the traffic Department at Vihiga Police Station, produced the police abstract issued by that Station in respect of an accident which occurred on 13th June 2019 in which motor vehicle KCP 083V, an Isuzu bus, lost control and fell, the Respondent having boarded that vehicle and sustained injuries, and having been issued with a P3 form and a police abstract. She named PC Mwinzi as the Investigating Officer, who had since been transferred.
13. PW3 dealt candidly with the difficulty in the Respondent's case. She told the Court that the Respondent's name did not appear in the Occurrence Book, although there were several entries. She said she was aware of the letter dated 8th April 2020 and of what had led the Base Commander to write it, and that the letter emanated from Vihiga Police Station. Her evidence, however, was that the omission was not the Respondent's fault; that where there are many injured persons a name may be left out; that it was the duty of the officer to capture the name and ensure that it was entered in the Occurrence Book; and, in terms, that the police took responsibility for the omission. She noted that the letter was handwritten rather than typed and that its author had not come to Court. In re-examination she repeated that the Respondent was involved in the accident but his name was omitted, and that this was not his fault.
14. DW1, No. 59708 Corporal John Koech, also attached to Vihiga Police Station on traffic duties, testified that an accident occurred at 6.00 a.m. involving motor vehicle KCP 083V, an Isuzu bus belonging to the 1st Appellant, which was being driven from Nairobi to Kakamega and which lost control and landed in a ditch on reaching Shamakhokho. The passengers sustained injuries and the police at the scene came with a list of the injured. He said the Respondent was not among them, his name not appearing in the Occurrence Book. He produced the letter of the Base Commander dated 8th April 2020 as Defence Exhibit 1, over the objection of Counsel for the Respondent, the trial Court having ruled that as PW3 and DW1 were from the same station the Court would consider their evidence.
15. In cross-examination DW1 made a series of important concessions. He was not the Investigating Officer; PC Mwinzi was. He did not visit the scene of the accident. He had not produced Occurrence Book No. 13 in Court. His position was that he had the authority of the Base Commander to produce the letter. In re-examination he said that he had perused the Occurrence Book and the police file, and the defence case was closed.
THE JUDGMENT APPEALED AGAINST
16. The learned trial Magistrate framed five issues: ownership of the vehicle; whether an accident occurred on 13th June 2019 involving KCP 083V and the Respondent as a lawful fare-paying passenger; who was to blame
and to what degree; the injuries and the appropriate quantum; and costs.
17. On ownership he relied on the copy of records, Plaintiff's Exhibit 6, and found the issue in the affirmative. On the occurrence of the accident he observed that PW1 and DW1 were at one that the accident occurred at Shamakhokho along the Kapsabet–Chavakali road when the vehicle lost control and overturned, and found that issue in the affirmative also.
18. On liability he applied Embu Public Road Services Limited v Riimi [1968] EA 22, holding that where an accident occurs and no explanation is given by the Defendant which could exonerate him, the Court is at liberty to apply res ipsa loquitur. He reasoned that a passenger who boards a vehicle expects to be carried safely to his destination; that the Respondent did not arrive safely; and that had the bus been carefully driven it would not have overturned.
19. On the contest about the Occurrence Book, the learned Magistrate held that DW1 testified on the basis of the Occurrence Book but neither produced an extract of it nor led the Court through it; that DW1 was not the Investigating Officer, did not visit the scene, did not prepare or complete the abstract, and carried out no investigation to establish fraud, relying entirely on records availed to him. He characterised DW1's testimony as hearsay and uncorroborated. He further held that the unilateral revocation of the abstract was unlawful and malicious, no proper investigation having been carried out and the Investigating Officer not having been consulted, and that the Respondent had been denied an opportunity to be heard. Having had the advantage of seeing the demeanour of the witnesses, he preferred the Respondent's evidence, which he described as overwhelming, to what he called the stand-alone evidence of the defence, and found the medical evidence uncontroverted.
20. He accordingly held the Appellants jointly and severally liable to the extent of one hundred per cent. On quantum, having referred to an authority in which an award of Kshs. 300,000 for soft tissue injuries and a dislocation was upheld on appeal, and to Pitalis Opiyo Ager v Daniel
Otieno Owino and Another [2020] eKLR, in which an award of Kshs. 200,000 was upheld for chest injuries and a dislocation of the small toe, and taking into account inflationary trends, the nature of the injuries and the general trend of awards, he assessed general damages at Kshs. 250,000. He declined to award special damages, none having been pleaded or proved.
THE APPEAL
21. The memorandum of appeal dated 5th February 2025 raises four grounds. In summary, it is said that the learned Magistrate erred: in awarding Kshs. 250,000 as general damages without considering the circumstances of the case; in misdirecting himself as to the extent and value of the Respondent's injuries and thereby in his assessment of damages, the treatment notes having been flagged as not genuine; in failing to consider the evidence tendered by the Appellants; and in failing to consider the Appellants' submissions and authorities, arriving at an unjustified decision on quantum. The Appellants pray that the appeal be allowed, the decree set aside, that this Court re-evaluate the evidence and determine whether the claim is genuine, and that they have the costs of the appeal.
22. In their written submissions dated 4th May 2026 the Appellants contend that the Respondent failed to prove that he was a passenger in KCP 083V; that DW1 produced a verification letter stating that he had not issued the Respondent with an abstract or a P3 form, and a letter revoking the abstract; that the Respondent was not listed in the Occurrence Book; that no independent witness was called to support his account; and that the documents produced were illegally obtained and the claim fraudulent. They invoked Sections 108 and 109 of the Evidence Act and Eastern Produce (K) Limited v Christopher Atiado Osiro, Eldoret High Court Civil Appeal No. 43 of 2001, citing Kiema Mutuku v Kenya Cargo Hauling Services Limited [1991] 2 KAR 258 for the proposition that there is as yet no liability without fault in Kenya and that a Plaintiff must prove some negligence where the claim is founded on negligence.
23. For the Respondent it is submitted that the award was not inordinately high and does not meet the threshold in Kemfro Africa Limited t/a "Meru Express Services (1976)" and Another v Lubia and Another (No. 2); that the trial Court considered the evidence of both sides, as the judgment itself demonstrates; that DW1 admitted he was not the investigating officer, did not visit the scene and did not produce the Occurrence Book; and that PW3 confirmed the Respondent's involvement and explained that the omission of his name was the fault of the duty officer. The Respondent prays that the appeal be dismissed with costs.
PRELIMINARY OBSERVATIONS ON THE RECORD
24. Three matters of form may be disposed of shortly. First, the suit number is given variously in the record as Vihiga PMCC No. 125 of 2019 and as PMCC No. E125 of 2019, and this appeal is cited both as Civil Appeal No. E04 of 2025 and as Civil Appeal No. E004 of 2025. The correct references are Vihiga Principal Magistrate's Court Civil Suit No. 125 of 2019 and this Civil Appeal No. E004 of 2025. The variations are clerical and have misled nobody.
25. Secondly, the memorandum of appeal refers throughout to "the Appellant" in the singular although there are two Appellants, and it was drawn by one firm while the submissions were filed by another sharing the same address. Neither circumstance affects the competence of the appeal, and no objection was taken.
26. Thirdly, judgment was delivered on 21st January 2025 and the memorandum of appeal was filed on 6th February 2025, well within time. The appeal is properly before me.
27. A fourth matter is of substance rather than form and I record it here because it recurs below. The record refers to the police witness called by the Respondent as PW3 and, in one place in the proceedings, gives her first name as Patrick, while the Plaintiff's submissions, the trial judgment and the Appellants' own submissions all refer to her as PC Damaris Mutunga and to her in the feminine. Her force number, No. 104937, is constant throughout. I am satisfied that these references are
to one and the same officer, and I refer to her simply as PW3 or as PC Mutunga.
THE DUTY OF THIS COURT ON A FIRST APPEAL
28. In a first appeal this Court is under a duty to reconsider the evidence tendered before the trial Court, to evaluate it afresh and to draw its own conclusions, always bearing in mind that it neither saw nor heard the witnesses and must make due allowance in that respect: Selle and Another v Associated Motor Boat Company Limited [1968] EA 123; Peters v Sunday Post Limited [1958] EA 424. The power is conferred by Section 78 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and was restated in Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212, upon which the Appellants themselves rely.
29. The correlative restraint is equally settled. In Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982–88) 1 KAR 278 the Court of Appeal held that a first appellate Court will hesitate before reversing findings of fact, and will do so only where the trial Court failed to take account of particular circumstances or probabilities, or where the impression based on the demeanour of a witness is inconsistent with the evidence generally. In Abok James Odera t/a A. J. Odera and Associates v John Patrick Machira t/a Machira and Company Advocates [2013] eKLR the Court restated the obligation to subject the whole of the evidence to a fresh and exhaustive scrutiny.
30. That restraint has real work to do in this appeal. The determination under challenge turned substantially upon the trial Court's assessment of two competing bodies of evidence about the same event, given by two Police Officers from the same Station, and upon its appraisal of the credibility of the Respondent when his honesty was squarely put in issue. The learned Magistrate expressly recorded that he had the advantage of seeing the demeanour of the witnesses. I have not. I have accordingly examined the record with care to see whether the conclusion he reached is one that the evidence, objectively assessed, could support, and whether he misdirected himself in law.
ISSUES FOR DETERMINATION
31. The issues which arise are:
a) Whether the Respondent proved, on a balance of probabilities, that he was a passenger in motor vehicle registration number KCP 083V on 13th June 2019 and was injured in the accident of that date — that is to say, whether the claim is genuine;
b) If so, whether the learned trial Magistrate was right to hold the Appellants liable in negligence to the extent of one hundred per cent;
c) Whether the award of Kshs. 250,000 as general damages is one with which this Court ought to interfere;
d) Whether the trial Court failed to consider the Appellants' evidence, submissions and authorities; and
e) Who should bear the costs.
WHETHER THE CLAIM IS GENUINE
(i) How the issue arises, and on whom the burden lies
32. The burden of proving that he was a passenger in the bus and was injured lay, and remained throughout, upon the Respondent. Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya, place it there, and nothing that the Appellants did or failed to do could shift it. To that extent the Appellants' submission is unimpeachable, and the authorities they cite — Eastern Produce (K) Limited v Christopher Atiado Osiro and, within it, Kiema Mutuku v Kenya Cargo Hauling Services Limited [1991] 2 KAR 258 — correctly state the law.
33. But the Appellants did not confine themselves to putting the Respondent to proof. They advanced a positive case of their own: that the abstract and the P3 form were illegally obtained, that they were null and void, and that the claim is fraudulent. Their submissions to this Court put it in terms, urging that the suit be dismissed "for being fraudulent". An allegation of that character carries its own consequences in pleading and in proof, and it is convenient to deal with those first.
34. It is elementary that fraud must be specifically pleaded and particularised. Order 2 Rule 10 of the Civil Procedure Rules, 2010 so requires. In Vijay Morjaria v Nansingh Madhusingh Darbar and Another [2000] eKLR the Court of Appeal held that it is settled law that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading, the acts alleged to be fraudulent being set out and then stated to be fraudulent. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR the Court held that fraudulent conduct must be distinctly alleged and distinctly proved, and that it is not allowable to leave fraud to be inferred from the facts.
35. The standard of proof is also higher than the ordinary civil standard. In Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314 it was held that allegations of fraud must be strictly proved, and that although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
36. The statement of defence in this case pleads no fraud at all. It does not allege that the abstract or the P3 form was forged, procured by deceit, or otherwise unlawfully obtained. It does not allege that the Respondent was never in the vehicle; it puts him to strict proof that he was. The Appellants were content to introduce the revocation letter through a supplementary list of documents filed more than three years after the defence, and to make their case in evidence and submissions. They cannot in those circumstances ask this Court, or the Court below, to find fraud established. It was not open to the trial Court to make such a finding, and it is not open to me.
37. I should not be understood as saying that the Appellants were thereby disabled from challenging the Respondent's account. They were entitled, as any Defendant is, to test his evidence and to invite the Court to disbelieve him. The distinction matters because it determines what has to be shown. The question is not whether the Appellants proved fraud — they did not plead it and so cannot — but whether, on the whole of the evidence, the Respondent discharged the ordinary civil burden of proving that he was in the bus and was hurt. I turn to that question.
(ii) The Occurrence Book
38. The Appellants' case stands or falls on the proposition that the Respondent's name is absent from the Occurrence Book at Vihiga Police Station. That proposition was advanced by two routes: the oral evidence of DW1 and the letter of the Base Commander.
39. The first and most striking feature of the record is that the Occurrence Book was never produced. It was listed in the Appellants' own list of documents, both in the original list of 18th August 2019 and again in the supplementary list of 26th October 2022, on each occasion described as the "Police File/OB". It was never tendered. DW1, a serving officer of the very station which holds it, was asked in cross-examination and confirmed that he had not produced Occurrence Book No. 13 in Court
40. The Evidence Act requires that the contents of a document be proved by production of the document itself, secondary evidence of its contents being admissible only in the excepted cases for which the Act provides. No attempt was made to bring this case within any of those exceptions. The Appellants asked the trial Court, and now ask this Court, to find as a fact that a name does not appear in a book which neither Court has seen, on the strength of the assertion of a witness who was not the author of the book, who did not make the relevant entries, who was not at the scene, and who was not the Investigating Officer.
41. That is a considerable thing to ask. It is the more considerable because the document was, on the Appellants' own case, within the control of their witness's employer and had been in their contemplation since 2019. Where a party asserts the contents of a document which it is uniquely placed to produce, and does not produce it, a Court is entitled to weigh that omission. I do not need to go so far as to draw an adverse inference. It is enough to say that the assertion, unsupported by the document, was of slight probative value, and the learned trial Magistrate was entitled so to treat it.
42. There is a further difficulty with DW1's evidence which appears not to have been pressed below but which is plain on the record. His account of the date and time of the accident was that it occurred on 14th June 2019 at 6.00 a.m., and he identified the relevant entry as Occurrence Book No. 13 of 14th June 2019. Every other source in the case, including the letter which he himself produced, places the accident on 13th June 2019, that letter recording in terms that the accident "occurred on 13/06/2019" and was reported under OB 13. A witness whose central evidence is that a particular name is missing from a particular entry, and who is mistaken about which day that entry concerns, does not inspire confidence.
(iii) The letter of 8th April 2020
43. The letter produced as Defence Exhibit 1 is on the letterhead of Vihiga Police Station and is dated 8th April 2020. It is addressed not to the Court, nor to the Respondent, but to the Managing Director of Directline Assurance Company Limited. It opens by referring to that company's own letter of the same date. It states that the records of the accident of 13th June 2019, reported under OB 13, had been perused, that the Respondent was not involved as he does not appear in the Occurrence Book, and that any P3 form and police abstract issued to him are null and void and cannot be used as proof of involvement. It bears the stamp and signature of the Base Commander.
44. Three things follow. The first is that the Base Commander who wrote the letter never came to Court. His assertion that he perused the records and that a particular name was not there is, in the mouth of DW1, an assertion of the truth of what another person said out of Court. Whether it is labelled hearsay or characterised as secondary evidence of the contents of a document, the vice is the same: the maker was not before the Court, was not on oath, and could not be cross-examined about how thorough his perusal was, whether he considered the possibility of omission, or on what basis he pronounced documents issued by his own station to be void. PW3 made the point herself when she observed that
the letter was handwritten rather than typed and that its author had not come to Court.
45. The second is that the letter was written on the same day as, and expressly in answer to, an inquiry from an insurance company. That does not make it worthless, but it does mean that it was not the product of any independent police investigation into a suspected false claim. No file was opened. No statement was taken from the Respondent. The Investigating Officer, PC Mwinzi, was not consulted so far as the record shows. Nobody was charged. DW1 confirmed that he carried out no investigation of his own.
46. The third is that the letter purports to nullify documents on which a citizen's claim depends, without notice to him and without any opportunity for him to be heard. The learned trial Magistrate was troubled by this, and Article 47 of the Constitution, which guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, lends his concern support.
47. I must, however, part company with the learned Magistrate in one respect. He went on to find that the revocation was "unlawful and malicious". That was, with respect, a step too far. The Base Commander was not a party to the suit, gave no evidence, and had no opportunity to answer an allegation of malice; and no such case was pleaded against him. A finding of malice against a public officer who is not before the Court and who has not been heard should not be made. I set that finding aside. What survives, and what is sufficient, is the narrower and unimpeachable proposition that the letter was untested, that its author was not called, and that it could not by itself displace sworn evidence given in Court and subjected to cross-examination.
48. I would add, for completeness, that the learned Magistrate's use of the word "hearsay" to describe DW1's evidence as a whole was not entirely apt, since DW1 also gave direct evidence of matters within his own knowledge. But the substance of the criticism — that the material parts of his evidence depended on documents he did not produce and on a
letter he did not write — was sound, and the conclusion drawn from it was correct.
(iv) The evidence of PW3
49. Against the letter stood the sworn testimony of PC Mutunga, an Officer of the very same station, who produced the Police Abstract, told the Court that the Respondent was involved in the accident, and explained the absence of his name from the Occurrence Book as an error of the duty officer for which the police accepted responsibility. She was not the Appellants' witness, but neither was she a witness with any personal stake in the outcome. She was cross-examined, and her account was not shaken.
50. It is important to be precise about what she said, because the Appellants' submissions to this Court do not accurately reflect it. Those submissions assert that PW2, PC Mutunga, "confirmed that she was aware of the letter revoking the Abstract and that there was no further OB listing the Respondent as having been among those injured", and conclude that "both witnesses for the Appellant and Respondent confirmed that the Respondent was never involved in the accident by virtue of not being listed in the OB".
51. That is not what the Officer said. She agreed that the name was not in the Occurrence Book, and she agreed that she was aware of the letter. She did not agree that the Respondent was never involved. On the contrary, she said the opposite, twice: in cross-examination, that it was not the Respondent's fault that his name did not appear and that it was the duty of the Officer to capture it; and in re-examination, that the Respondent was involved in an accident but his name was omitted, and that this was not his fault. To convert an admission that a record is incomplete into a confirmation that an event never occurred is to mistake the absence of evidence for evidence of absence. The submission cannot be accepted.
52. The learned Magistrate was therefore confronted with two Officers of the same station giving
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