(Being an appeal from the judgment and decree of the Hon. P.M. Mugure (Mrs), PM, in Wang’uru Magistrate’s Court Civil Case No. 90 of 2019 delivered on 7/11/2022)
Background
1. This appeal through the memorandum dated 26/11/2022 is on both liability and assessment of damages. The appeal seeks to set aside the decree arising from a judgment dated 7th November 2022 where the trial court found the appellant wholly liable in negligence for injuries sustained by the respondent following a road traffic accident involving the appellant’s motor vehicle registration number KBA 770K and the respondent who was riding his motor cycle registration number KMDA 876J and awarded general damages for pain, suffering and loss of amenities KShs 1,000,000/= and special damages KShs 3,050/= making a total of KShs 1,003,050/=. It is the appellant’s contention that the judgment was erroneous in both law and fact.
Grounds of appeal
2. The appellants were dissatisfied with the judgment of the trial court and have filed this appeal based on six grounds which are repetitive and so can be summarized into two as follows:
a. The learned trial magistrate erred and misdirected herself in fact and in law by failing to analyze the evidence and submissions tendered by the appellant and therefore arrived at an erroneous decision that was against the weight of the evidence.
b. The learned trial magistrate erred in fact and in law in by failing to appreciate the injuries sustained by the respondent and to consider conventional awards for similar injuries and in so doing arrived at an inordinately excessive award of KShs 1,000,000/= as general damages.
3. The appellants therefore pray that the appeal be allowed and the judgment of the trial court be set aside and substituted with an award of this court and the costs of the appeal be borne by the respondent.
Submissions
4. The court directed that the appeal be disposed of by way of written submissions. Only the respondent filed his submissions as directed by the court. Even after being granted additional time, the appellants did not file their submissions. The submissions for the respondent are considered in the analysis following.
Duty of the appellate court
5. The duty of this court, as a first appellate court, is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
6. The evidence before the trial court was given for the respondent’s side only. The appellant did not tender any evidence.
7. PW 2, Francis Mucira Mwai, the respondent testified giving his evidence on 4/7/2022. He adopted his witness statement dated 22/11/2019 as his evidence in chief. His evidence was that on 5/3/2019 at 6.30 a.m. he was going to work at Mwea from Nyangati while riding his motorcycle registration number KMDA 876J, while the appellants’ motor vehicle registration number KBA 770K driven by Shadrack Mukaria Mwitome, the 1st appellant and owned by M’Arimi Guantai Moris, the 2nd appellant, was coming from the opposite direction at high speed using the respondent’s lane while trying to overtake a vehicle ahead. The respondent pulled to his far-left side but the appellants’ vehicle reached him and knocked him down. He went unconscious for a while. A member of the public took him to Kimbimbi hospital for treatment. The motor cycle and vehicle were towed to the police station.
8. He sustained the following injuries mostly to his left leg;
a. Major crush injuries on the left foot.
b. Extensive blunt injury on the left foot.
c. Extensive deep wound on the upper part of the left foot.
d. Crashed 1st and 4th toes.
e. Amputation of the 4th toe.
f. Swollen left foot.
g. Scar on the left part of the left ankle joint measuring 18 cm long.
h. Swollen, scarred and stiff left big toe.
i. Permanent disability 8%.
9. He was admitted to hospital for six days. He blamed the driver of the motor vehicle for the accident.
10. PW 2 produced various documents which are considered herein as exhibits to support his case. They were police abstract, medical examination report (P3 form), motor vehicle copy of records and receipt for payment, treatment notes from Kimbimbi Sub-District hospital, medical report dated 11/7/2019 from Dr. W.M. Wokabi, statutory notice and demand letter dated 30/4/2019 copy of national identification card and letter from Equity Bank dated 6th May 2019.
11. PW 1, PC Alfred Marambi of Wang’uru traffic base testified that the accident was reported at the police station. He produced the police abstract in relation to the accident. He said that he was not the investigating officer in the case. The investigating officer PC Oduor was on transfer to Kabete police station.
12. In cross-examination, PW 1 said that he did not visit the scene and did not know about an eye witness to the accident. He said that no one had been charged as investigations were not concluded.
13. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found that the driver of the vehicle was negligent in his manner of driving as the vehicle was overtaking other vehicles while moving at high speed when he knocked down the respondent who was on the side of the road. She therefore found the driver negligent in the circumstances and found the appellants wholly liable in negligence.
14. The learned trial magistrate then considered the injuries sustained by the respondent and set out various decisions as submitted to the court by both parties for consideration of the injuries and the awards made. She then assessed and awarded general damages for pain, suffering and loss of amenities.
Analysis
15. I have considered the grounds of appeal filed herein, the submissions by learned counsel for the respondent and the judgment of the learned trial magistrate. The issue for determination in this appeal would be whether the trial court was right in finding the appellants wholly liable in negligence for the accident and whether general damages awarded by the trial court were so inordinately high as to be erroneous and subject to be upset.
16. I am aware that even as this court examines and re-evaluates the evidence on record, it should be slow to upset the findings of fact reached by the trial court for reasons that it had the advantage of seeing the witnesses and determining their demeanor. This was expressed by the Court of Appeal in the case of Jabane v Olenja [1986] KLR 661, 664 thus:
“I accept this proposition, so far as it goes, and that this court does have the power to examine and re-evaluate the evidence and the findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand see Peters v Sunday Post [1958] EA 424. More recently, however, this court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni v Kenya Bus Services (1982- 88) 1 KAR 870.”
17. As stated above, the appellants did not make any submissions to support their grounds of appeal.
18. Section 79C of the Civil Procedure Act (Cap. 21) Laws of Kenya on the mode of hearing appeal provides that:
79C. Mode of hearing appeal
Appeals from subordinate courts shall be heard by one judge of the High Court except when in any particular case the Chief Justice shall direct that the appeal be heard by two or more judges of the High Court; and such direction may be given before the hearing of the appeal or at any time before judgment is delivered.
19. The section provides that an appeal “shall be heard.” Hearing in this appeal took the form of parties being directed to file submissions as is the usual practice in our courts. This court differently constituted issued directions on 30/1/2025 in the presence of learned counsels for both parties, Ms Akinyi for the appellants and Macharia for the respondents that parties to file submissions, each taking 21 days starting with the appellant. The respondent filed submissions dated 10/2/2025 but the appellant never filed submissions, in spite of the court’s directions being that it be the first to file the submissions. The appellant was given indulgence on several other occasions when the matter came up but never filed submissions. No doubt, the respondent was prejudice in having to file his submissions without the benefit of first considering the submissions from the appellant.
20. On 10/4/2025, this court fixed the date for judgment to be 25/6/2025 and directed that the appellant was at liberty to file submissions within 14 days. I have seen several affidavits of service filed by the respondent upon the appellant’s advocates informing them that the matter was coming up for either mention, hearing or judgment. The appellants never took heed to file their submissions.
21. It appears to me apparent from the court record that the appellants were never interested in prosecuting the appeal from the first day. They made an application for stay pending appeal dated 10/2/2023. They never filed submissions on that application as observed by the court in its ruling dated 6/8/024. The court granted the application for stay on conditions and stated that if the conditions were not met, then the respondent was at liberty to execute. The proceedings of the court dated 3/10/2024 show that the appellants never met the conditions and so it is not surprising that they never filed the submissions to prosecute the appeal. It means they were ready for execution which luckily for them the respondent has not been in a hurry to carry out.
22. In the case of Independent Electoral & Boundaries Commission -v- Jane Cheperenger & 2 others SC Petition No.5 of 2016 [2018] eKLR the Supreme Court underscored the importance of complying with Court orders and given directions, pointing out that every party has an obligation to honour the Court’s directions. The Supreme Court went ahead to state that whereas late filing of submissions is not incurable, and the Court has discretion to allow such late filing, the appellant had not moved the Court appropriately by way of an application for extension of time to file the said documents. The Supreme Court all the same allowed the admission of the submissions that had been filed late pointing out that the consideration to bear in mind is what prejudice has been suffered by the respondent due to the applicant’s failure to timeously file its submissions and whether the respondent can be facilitated to mitigate such prejudice as may have been suffered.
23. In this case, the appellant has not even attempted to file their submissions. Consequently, I find that the appellant has abandoned the prosecution of its appeal because the same amounts to non-appearance at the hearing to prosecute the appeal.
24. In the case of Stephen Muthamia Marete & 2 others v Mary Naitore Kinyua (enjoined as the legal representative of the Estate of Patrick Kinyua Iringo) [2018] eKLR, faced with a similar situation where an appellant failed to file submissions in support of an appeal, the High Court observed and held as follows:
“In my view, when an Appellant has been ordered to file written submissions and he fails to do so as the Appellants have done in this case, the court should find, as it does in this case, that the appellant has failed to prosecute his appeal, or is no longer interested in pursuing it.”
25. The court went on to state as follows:
“I find that the Appellants have failed to prosecute their appeal. I hereby dismiss the appeal with costs for want of prosecution.”
26. I am persuaded to follow this position. In the circumstances, I am satisfied and do find that the appellants in this case have failed to prosecute their appeal and consequently, the same is dismissed for want of prosecution.
27. Costs to the respondent.
28. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 15th day of August 2025 in the presence of:
Ms Mwongeli for the appellant.
Ms Nyaga for the respondent.
Job: Court assistant.
Background
1. This appeal through the memorandum dated 26/11/2022 is on both liability and assessment of damages. The appeal seeks to set aside the decree arising from a judgment dated 7th November 2022 where the trial court found the appellant wholly liable in negligence for injuries sustained by the respondent following a road traffic accident involving the appellant’s motor vehicle registration number KBA 770K and the respondent who was riding his motor cycle registration number KMDA 876J and awarded general damages for pain, suffering and loss of amenities KShs 1,000,000/= and special damages KShs 3,050/= making a total of KShs 1,003,050/=. It is the appellant’s contention that the judgment was erroneous in both law and fact.
Grounds of appeal
2. The appellants were dissatisfied with the judgment of the trial court and have filed this appeal based on six grounds which are repetitive and so can be summarized into two as follows:
a. The learned trial magistrate erred and misdirected herself in fact and in law by failing to analyze the evidence and submissions tendered by the appellant and therefore arrived at an erroneous decision that was against the weight of the evidence.
b. The learned trial magistrate erred in fact and in law in by failing to appreciate the injuries sustained by the respondent and to consider conventional awards for similar injuries and in so doing arrived at an inordinately excessive award of KShs 1,000,000/= as general damages.
3. The appellants therefore pray that the appeal be allowed and the judgment of the trial court be set aside and substituted with an award of this court and the costs of the appeal be borne by the respondent.
Submissions
4. The court directed that the appeal be disposed of by way of written submissions. Only the respondent filed his submissions as directed by the court. Even after being granted additional time, the appellants did not file their submissions. The submissions for the respondent are considered in the analysis following.
Duty of the appellate court
5. The duty of this court, as a first appellate court, is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
6. The evidence before the trial court was given for the respondent’s side only. The appellant did not tender any evidence.
7. PW 2, Francis Mucira Mwai, the respondent testified giving his evidence on 4/7/2022. He adopted his witness statement dated 22/11/2019 as his evidence in chief. His evidence was that on 5/3/2019 at 6.30 a.m. he was going to work at Mwea from Nyangati while riding his motorcycle registration number KMDA 876J, while the appellants’ motor vehicle registration number KBA 770K driven by Shadrack Mukaria Mwitome, the 1st appellant and owned by M’Arimi Guantai Moris, the 2nd appellant, was coming from the opposite direction at high speed using the respondent’s lane while trying to overtake a vehicle ahead. The respondent pulled to his far-left side but the appellants’ vehicle reached him and knocked him down. He went unconscious for a while. A member of the public took him to Kimbimbi hospital for treatment. The motor cycle and vehicle were towed to the police station.
8. He sustained the following injuries mostly to his left leg;
a. Major crush injuries on the left foot.
b. Extensive blunt injury on the left foot.
c. Extensive deep wound on the upper part of the left foot.
d. Crashed 1st and 4th toes.
e. Amputation of the 4th toe.
f. Swollen left foot.
g. Scar on the left part of the left ankle joint measuring 18 cm long.
h. Swollen, scarred and stiff left big toe.
i. Permanent disability 8%.
9. He was admitted to hospital for six days. He blamed the driver of the motor vehicle for the accident.
10. PW 2 produced various documents which are considered herein as exhibits to support his case. They were police abstract, medical examination report (P3 form), motor vehicle copy of records and receipt for payment, treatment notes from Kimbimbi Sub-District hospital, medical report dated 11/7/2019 from Dr. W.M. Wokabi, statutory notice and demand letter dated 30/4/2019 copy of national identification card and letter from Equity Bank dated 6th May 2019.
11. PW 1, PC Alfred Marambi of Wang’uru traffic base testified that the accident was reported at the police station. He produced the police abstract in relation to the accident. He said that he was not the investigating officer in the case. The investigating officer PC Oduor was on transfer to Kabete police station.
12. In cross-examination, PW 1 said that he did not visit the scene and did not know about an eye witness to the accident. He said that no one had been charged as investigations were not concluded.
13. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found that the driver of the vehicle was negligent in his manner of driving as the vehicle was overtaking other vehicles while moving at high speed when he knocked down the respondent who was on the side of the road. She therefore found the driver negligent in the circumstances and found the appellants wholly liable in negligence.
14. The learned trial magistrate then considered the injuries sustained by the respondent and set out various decisions as submitted to the court by both parties for consideration of the injuries and the awards made. She then assessed and awarded general damages for pain, suffering and loss of amenities.
Analysis
15. I have considered the grounds of appeal filed herein, the submissions by learned counsel for the respondent and the judgment of the learned trial magistrate. The issue for determination in this appeal would be whether the trial court was right in finding the appellants wholly liable in negligence for the accident and whether general damages awarded by the trial court were so inordinately high as to be erroneous and subject to be upset.
16. I am aware that even as this court examines and re-evaluates the evidence on record, it should be slow to upset the findings of fact reached by the trial court for reasons that it had the advantage of seeing the witnesses and determining their demeanor. This was expressed by the Court of Appeal in the case of Jabane v Olenja [1986] KLR 661, 664 thus:
“I accept this proposition, so far as it goes, and that this court does have the power to examine and re-evaluate the evidence and the findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand see Peters v Sunday Post [1958] EA 424. More recently, however, this court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni v Kenya Bus Services (1982- 88) 1 KAR 870.”
17. As stated above, the appellants did not make any submissions to support their grounds of appeal.
18. Section 79C of the Civil Procedure Act (Cap. 21) Laws of Kenya on the mode of hearing appeal provides that:
79C. Mode of hearing appeal
Appeals from subordinate courts shall be heard by one judge of the High Court except when in any particular case the Chief Justice shall direct that the appeal be heard by two or more judges of the High Court; and such direction may be given before the hearing of the appeal or at any time before judgment is delivered.
19. The section provides that an appeal “shall be heard.” Hearing in this appeal took the form of parties being directed to file submissions as is the usual practice in our courts. This court differently constituted issued directions on 30/1/2025 in the presence of learned counsels for both parties, Ms Akinyi for the appellants and Macharia for the respondents that parties to file submissions, each taking 21 days starting with the appellant. The respondent filed submissions dated 10/2/2025 but the appellant never filed submissions, in spite of the court’s directions being that it be the first to file the submissions. The appellant was given indulgence on several other occasions when the matter came up but never filed submissions. No doubt, the respondent was prejudice in having to file his submissions without the benefit of first considering the submissions from the appellant.
20. On 10/4/2025, this court fixed the date for judgment to be 25/6/2025 and directed that the appellant was at liberty to file submissions within 14 days. I have seen several affidavits of service filed by the respondent upon the appellant’s advocates informing them that the matter was coming up for either mention, hearing or judgment. The appellants never took heed to file their submissions.
21. It appears to me apparent from the court record that the appellants were never interested in prosecuting the appeal from the first day. They made an application for stay pending appeal dated 10/2/2023. They never filed submissions on that application as observed by the court in its ruling dated 6/8/024. The court granted the application for stay on conditions and stated that if the conditions were not met, then the respondent was at liberty to execute. The proceedings of the court dated 3/10/2024 show that the appellants never met the conditions and so it is not surprising that they never filed the submissions to prosecute the appeal. It means they were ready for execution which luckily for them the respondent has not been in a hurry to carry out.
22. In the case of Independent Electoral & Boundaries Commission -v- Jane Cheperenger & 2 others SC Petition No.5 of 2016 [2018] eKLR the Supreme Court underscored the importance of complying with Court orders and given directions, pointing out that every party has an obligation to honour the Court’s directions. The Supreme Court went ahead to state that whereas late filing of submissions is not incurable, and the Court has discretion to allow such late filing, the appellant had not moved the Court appropriately by way of an application for extension of time to file the said documents. The Supreme Court all the same allowed the admission of the submissions that had been filed late pointing out that the consideration to bear in mind is what prejudice has been suffered by the respondent due to the applicant’s failure to timeously file its submissions and whether the respondent can be facilitated to mitigate such prejudice as may have been suffered.
23. In this case, the appellant has not even attempted to file their submissions. Consequently, I find that the appellant has abandoned the prosecution of its appeal because the same amounts to non-appearance at the hearing to prosecute the appeal.
24. In the case of Stephen Muthamia Marete & 2 others v Mary Naitore Kinyua (enjoined as the legal representative of the Estate of Patrick Kinyua Iringo) [2018] eKLR, faced with a similar situation where an appellant failed to file submissions in support of an appeal, the High Court observed and held as follows:
“In my view, when an Appellant has been ordered to file written submissions and he fails to do so as the Appellants have done in this case, the court should find, as it does in this case, that the appellant has failed to prosecute his appeal, or is no longer interested in pursuing it.”
25. The court went on to state as follows:
“I find that the Appellants have failed to prosecute their appeal. I hereby dismiss the appeal with costs for want of prosecution.”
26. I am persuaded to follow this position. In the circumstances, I am satisfied and do find that the appellants in this case have failed to prosecute their appeal and consequently, the same is dismissed for want of prosecution.
27. Costs to the respondent.
28. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 15th day of August 2025 in the presence of:
Ms Mwongeli for the appellant.
Ms Nyaga for the respondent.
Job: Court assistant.