1. The Appellant vide its memorandum of appeal dated 16th December 2024.The grounds are as follows:
(a) The learned magistrate erred in apportioning 50% against his despite the evidence on record clearing indicating that the 2nd Respondent was the sole cause of the accident and against the weight of evidence.
(b) The learned magistrate in law and fact in awarding Kshs.2,000,000 a general damage which is low in the circumstances considering the Appellant was left with 72% permanent disability.
(c) The learned magistrate in law and fact in failing to award costs for the future medical expenses for artificial prosthesis and replacement over years.
(d) The learned magistrate in law and fact in ignoring and/or failing to consider the Appellants submission and authorities.
2. The Appellant prayed that the appeal be allowed, this court be pleased to set aside the 50-50 liability and substitute with 100% against the Respondents. The Appellant further prays that the award on general damages be enhanced and the award for future medical costs for artificial prosthesis over the years.
3. Both parties elaborate written submissions. The Appellant’s submissions are dated 5th December 2025 and they supported the appeal with various case laws and prayed that this Court allows the appeal with costs. The Respondent’s submissions are dated 19th March 2026, they equally supported their position and prayed that this Court upholds the Trial Magistrate’s Judgement apart from the award under the loss of earning capacity.
Analysis and determination.
4. Having perused the record, the rival submissions and the decisions referred to therein, the emerging issued will be answered when this Court answers the question if the learned Magistrate erred in his decision. I will procced and analyse the matter with a view to finding an answer.
Whether the Learned Trial Magistrate erred in his decision.
5. Before dealing with the above issue, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.
6. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
Liability for the accident.
7. The two parties appear to have a different account of the accident. The Appellant form the proceedings testified that the accident happened in Olenguruone road, the Respondents car was coming from Gatundu Road and crossing to Othaya road, he informed the Trial Court that he was on the rear road. He testified that his four fingers got cut as a result of the accident and he was amputated on the right leg at the level of the lid thigh. He testified that he used to carry people and goods on his motor cycle but he was not able to do that after the accident.
8. On cross examination he testified that he was coming from the Yaya Centre side and that there is a cross junction. He did not see the vehicle before it hit me. He further testified the he doesn’t know where the vehicle was damaged because he became unconscious after the accident. He said that he did not hit the vehicle but the vehicle hit him from the left side. He testified that the accident occurred at 6am. He informed court that he did not keep his records but his income is estimated at 10,000/= shillings per month. On re-examination he testified that he was hit on the right side and that he did not see where the vehicle came from.
9. The 2nd Respondent informed the Trial Court that the he was on Olenguruone Road entering Nyeri Road and the accident happened at the Junction whereby the Appellant hit his car while he was crossing. He testified that hit car was hit on the left and that he had not seen the motor cycle before the accident.
10. On cross examination, he confirmed that the motor vehicle belonged to him and he was the one who reported the accident, he could not stay at the scene because of the other boda boda riders. He testified that the Appellant’s motor cycle did not have head lights hence he could not be seen. He concluded by saying the Impact on his car was to the front part of the vehicle. On re-examination he stated that the road was clear before he joined and that the impact on his vehicle was on the front right side.
11. A Police officer also testified and produced the police abstract issued to the Appellant. He informed court that investigations established that the driver of the Motor Vehicle KDG 050W, 1st Respondent herein was blamed for the accident. On cross examination, he informed Court that the motor cycle registration was not captured in the police abstract. He also informed court that it was not documented where the Motor Vehicle was coming from. He informed the Trial Court that the damage to the motor vehicle was on the front left side. He could not establish the damage to the motor cycle.
12. Form the account above, its not disputed that two people who were present when the accident occurred gave different accounts of the same. This Court will not belabour to demonstrate this since the facts speaks for themselves.
13. The Trial Court analysed the above account and with the help of various authorities reached a decision to apportion liability at 50-50. This Court having considered the proceedings and the testimony of the two persons who were present at the time the accident occurred. Finds that the liability was apportioned correctly by the Trial Court. This Court affirms the same.
Quantum of damages
i. General damages for pain and suffering and loss of amenities
14. The Trial Court awarded the Appellant Kshs.2,000,000 and supported its decision by various case laws. The Appellant appeal to this Court on the basis that the amount is manifestly low considering the Appellant was left with a 72% permanent disability to as a result of the serious injuries sustained as a result of the accident. The Appellant in their submissions suggest a figure of Kshs.3,000,000 would have been fair and reasonable.
15. The Respondent urges this Court to retain the award and supported their decision with various case laws.
16. This Court will evaluate the rival positions, the reasoning of the Trial Court, various case law with a view to determine if the amount awarded by the Trial Court needs to be interfered with. It is not disputed that the accident caused permanent disability to the Appellant. The award of such damages depends on many things including age and the nature of the injury sustained. Each party has attempted to support their position.
17. This Court having looked at the totality of the case is of the considered view that the award by the Trial Court considered all the relevant factors and will not disturb the same. The Trial Court award of Kshs.2,000,000 if hereby affirmed.
ii. Damages for loss of earning capacity
18. The Appellant was awarded Kshs.1,000,000 by the Trial Court. In the Plaint he pleaded that he is now unable to work due to the injuries. He averred that he was working as a transporter using his motor cycle from which he made a monthly income of Kshs.15,000. He said that he had not worked since February 2023 to the time he filed suit at the Trial Court, he averred that as a 46-year-old with modest formal education he would have worked up to 70 years.
19. Given the occupation of the Appellant, I am of the view that the global award method is indeed the most appropriate one and the Trial Court was right in awarding the sum of Kshs.1,000,000. This Court uphold the findings since they are well supported by precedents.
iii. Cost for future medical expenses for artificial prosthesis limb and replacement.
20. The Trial Court awarded the Appellant Kshs. 400,000 as damages on the above on grounds that he found that the same was supported as recommended by the Dr. M.W Wakobi and Dr. Michelle Muhanda, in the medical reports.
21. The Appellant submits that the law is clear that this prayer should be pleaded and be proved. He faults the Trial Court for only awarding kshs.400,000/= which failed to cater beyond recommended by the Doctor.
22. This Court has looked at the wording of the two medical which were produced at the Trial Court. One is dated 24th April 2023 and signed by Dr. W.M Wakobi. It was his opinion that the Appellant will incur Kshs.400,000/= for a prosthesis limb which will be replaced every 8-10years.
23. The second report is dated 23rd January 2024 signed by Dr. Michelle Muhanda, she equally recommended that the Appellant will require a prosthesis every 8-10years which will cost him Kshs.400,000.
24. The Respondents not dispute the said reports and indeed the same were produced by consent at the Trial Court. This Court reading both medical reports which indicate that the prosthesis limb will be used for 8-10years, is of the view that the Trial Court ought to have factored in how many times the Appellant will need to replace the same in his lifetime.
25. I am persuaded by the Appellant’s argument that the Appellant will require to replace the artificial limb every 8-10years as long as he is alive. I therefore enhance the award by Kshs.800,000/=
iii. Special damages
26. No party has disputed the award by the Trial Court therefore will court will affirm the award.
Final Orders.
27. Consequently, this Appeal partially succeeds on the award of additional Khs.800,000 for the cost of artificial prosthesis limb. The same will be subjected to the 50-50 liability.
28. Each party will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 10th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Oginda Learned Counsel for the Appellant.
Muimali h/b for Opondo Learned Counsel for the 2nd Respondents
Michael – Court Assistant.
(a) The learned magistrate erred in apportioning 50% against his despite the evidence on record clearing indicating that the 2nd Respondent was the sole cause of the accident and against the weight of evidence.
(b) The learned magistrate in law and fact in awarding Kshs.2,000,000 a general damage which is low in the circumstances considering the Appellant was left with 72% permanent disability.
(c) The learned magistrate in law and fact in failing to award costs for the future medical expenses for artificial prosthesis and replacement over years.
(d) The learned magistrate in law and fact in ignoring and/or failing to consider the Appellants submission and authorities.
2. The Appellant prayed that the appeal be allowed, this court be pleased to set aside the 50-50 liability and substitute with 100% against the Respondents. The Appellant further prays that the award on general damages be enhanced and the award for future medical costs for artificial prosthesis over the years.
3. Both parties elaborate written submissions. The Appellant’s submissions are dated 5th December 2025 and they supported the appeal with various case laws and prayed that this Court allows the appeal with costs. The Respondent’s submissions are dated 19th March 2026, they equally supported their position and prayed that this Court upholds the Trial Magistrate’s Judgement apart from the award under the loss of earning capacity.
Analysis and determination.
4. Having perused the record, the rival submissions and the decisions referred to therein, the emerging issued will be answered when this Court answers the question if the learned Magistrate erred in his decision. I will procced and analyse the matter with a view to finding an answer.
Whether the Learned Trial Magistrate erred in his decision.
5. Before dealing with the above issue, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.
6. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
Liability for the accident.
7. The two parties appear to have a different account of the accident. The Appellant form the proceedings testified that the accident happened in Olenguruone road, the Respondents car was coming from Gatundu Road and crossing to Othaya road, he informed the Trial Court that he was on the rear road. He testified that his four fingers got cut as a result of the accident and he was amputated on the right leg at the level of the lid thigh. He testified that he used to carry people and goods on his motor cycle but he was not able to do that after the accident.
8. On cross examination he testified that he was coming from the Yaya Centre side and that there is a cross junction. He did not see the vehicle before it hit me. He further testified the he doesn’t know where the vehicle was damaged because he became unconscious after the accident. He said that he did not hit the vehicle but the vehicle hit him from the left side. He testified that the accident occurred at 6am. He informed court that he did not keep his records but his income is estimated at 10,000/= shillings per month. On re-examination he testified that he was hit on the right side and that he did not see where the vehicle came from.
9. The 2nd Respondent informed the Trial Court that the he was on Olenguruone Road entering Nyeri Road and the accident happened at the Junction whereby the Appellant hit his car while he was crossing. He testified that hit car was hit on the left and that he had not seen the motor cycle before the accident.
10. On cross examination, he confirmed that the motor vehicle belonged to him and he was the one who reported the accident, he could not stay at the scene because of the other boda boda riders. He testified that the Appellant’s motor cycle did not have head lights hence he could not be seen. He concluded by saying the Impact on his car was to the front part of the vehicle. On re-examination he stated that the road was clear before he joined and that the impact on his vehicle was on the front right side.
11. A Police officer also testified and produced the police abstract issued to the Appellant. He informed court that investigations established that the driver of the Motor Vehicle KDG 050W, 1st Respondent herein was blamed for the accident. On cross examination, he informed Court that the motor cycle registration was not captured in the police abstract. He also informed court that it was not documented where the Motor Vehicle was coming from. He informed the Trial Court that the damage to the motor vehicle was on the front left side. He could not establish the damage to the motor cycle.
12. Form the account above, its not disputed that two people who were present when the accident occurred gave different accounts of the same. This Court will not belabour to demonstrate this since the facts speaks for themselves.
13. The Trial Court analysed the above account and with the help of various authorities reached a decision to apportion liability at 50-50. This Court having considered the proceedings and the testimony of the two persons who were present at the time the accident occurred. Finds that the liability was apportioned correctly by the Trial Court. This Court affirms the same.
Quantum of damages
i. General damages for pain and suffering and loss of amenities
14. The Trial Court awarded the Appellant Kshs.2,000,000 and supported its decision by various case laws. The Appellant appeal to this Court on the basis that the amount is manifestly low considering the Appellant was left with a 72% permanent disability to as a result of the serious injuries sustained as a result of the accident. The Appellant in their submissions suggest a figure of Kshs.3,000,000 would have been fair and reasonable.
15. The Respondent urges this Court to retain the award and supported their decision with various case laws.
16. This Court will evaluate the rival positions, the reasoning of the Trial Court, various case law with a view to determine if the amount awarded by the Trial Court needs to be interfered with. It is not disputed that the accident caused permanent disability to the Appellant. The award of such damages depends on many things including age and the nature of the injury sustained. Each party has attempted to support their position.
17. This Court having looked at the totality of the case is of the considered view that the award by the Trial Court considered all the relevant factors and will not disturb the same. The Trial Court award of Kshs.2,000,000 if hereby affirmed.
ii. Damages for loss of earning capacity
18. The Appellant was awarded Kshs.1,000,000 by the Trial Court. In the Plaint he pleaded that he is now unable to work due to the injuries. He averred that he was working as a transporter using his motor cycle from which he made a monthly income of Kshs.15,000. He said that he had not worked since February 2023 to the time he filed suit at the Trial Court, he averred that as a 46-year-old with modest formal education he would have worked up to 70 years.
19. Given the occupation of the Appellant, I am of the view that the global award method is indeed the most appropriate one and the Trial Court was right in awarding the sum of Kshs.1,000,000. This Court uphold the findings since they are well supported by precedents.
iii. Cost for future medical expenses for artificial prosthesis limb and replacement.
20. The Trial Court awarded the Appellant Kshs. 400,000 as damages on the above on grounds that he found that the same was supported as recommended by the Dr. M.W Wakobi and Dr. Michelle Muhanda, in the medical reports.
21. The Appellant submits that the law is clear that this prayer should be pleaded and be proved. He faults the Trial Court for only awarding kshs.400,000/= which failed to cater beyond recommended by the Doctor.
22. This Court has looked at the wording of the two medical which were produced at the Trial Court. One is dated 24th April 2023 and signed by Dr. W.M Wakobi. It was his opinion that the Appellant will incur Kshs.400,000/= for a prosthesis limb which will be replaced every 8-10years.
23. The second report is dated 23rd January 2024 signed by Dr. Michelle Muhanda, she equally recommended that the Appellant will require a prosthesis every 8-10years which will cost him Kshs.400,000.
24. The Respondents not dispute the said reports and indeed the same were produced by consent at the Trial Court. This Court reading both medical reports which indicate that the prosthesis limb will be used for 8-10years, is of the view that the Trial Court ought to have factored in how many times the Appellant will need to replace the same in his lifetime.
25. I am persuaded by the Appellant’s argument that the Appellant will require to replace the artificial limb every 8-10years as long as he is alive. I therefore enhance the award by Kshs.800,000/=
iii. Special damages
26. No party has disputed the award by the Trial Court therefore will court will affirm the award.
Final Orders.
27. Consequently, this Appeal partially succeeds on the award of additional Khs.800,000 for the cost of artificial prosthesis limb. The same will be subjected to the 50-50 liability.
28. Each party will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 10th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Oginda Learned Counsel for the Appellant.
Muimali h/b for Opondo Learned Counsel for the 2nd Respondents
Michael – Court Assistant.