( Being an appeal from the judgment of Hon. Angela Munyuny, Resident Magistrate, in Migori CMCC No. E121 of 2023 delivered on the 26 th March 2025 ).
JUDGMENT.
1. By a plaint dated 17 th July 2023 and filed on the 25 th July 2023 , the Plaintiff sued the Defendants seeking for general and special damages arising from a road traffic accident that occurred on the 10 th July 2023 along the Migori - Kisii road. The accident involved the Plaintiff, a pillion passenger and the Defendants motor vehicle registration number KDG 813M, Toyota Probox .
2. The Defendants were served with the pleadings and filed a Statement of Defence to the claim, denying the allegations of accident and negligence by the Plaintiff and instead attributed the accident to the negligence of the Plaintiff. They sought that the claim be dismissed.
3. The suit proceeded for trial and on the 28 th March 2025, the court delivered its determination on the claim by awarding the Plaintiff as follows:
a. Liability 50:50
b. General damages Kshs. 200,000.00
c. Less 50% Kshs. 100,000.00
Subtotal Kshs. 100,000.00
d. Special damages Kshs. 3,450.00
Total Kshs. 103,450.00
The Plaintiff was also awarded the costs of the suit and interest on the award.
4. The Plaintiff was dissatisfied with both the determination on liability and quantum and filed their Memorandum of Appeal dated 26 th March 2025. In the Memorandum, the Appellant sets out the Grounds as below:
a. That the learned Magistrate erred in law and fact in the manner she apportioned liability which was against the weight of the evidence.
b. That the learned Magistrate exhibited open bias in favour of the Respondent by apportioning liability against the Appellant at 50% without basis.
c. That the award on general damages was too low considering the fact that the Appellant had sustained fracture injuries.
d. That the learned trial Magistrate erred in law and fact by seemingly pouring cold water on the evidence tendered in support of the Appellant's case in the subordinate court without giving any reason for doing so.
e. That the Learned Magistrate erred in both law and fact by failing to consider, analyse and appreciate the law and appellant's written submissions.
f. The Honourable Magistrate erred in fact and in law in failing to appreciate the law relating to adversarial judicial system in Kenya.
g. It is proposed to ask this Court for Orders that:
i. The Appeal be allowed.
ii. The Judgment delivered by the trial Magistrate, on the Liability and the Quantum be set aside.
iii. That the costs of this Appeal be provided for .
5. The parties were invited to file their submissions both in support and opposition to the appeal. They both complied by the Appellant filing their submissions dated 8 th May 2026 and the Respondents filed their submissions dated 3 rd June 2026.
6. This being a first appeal, the principles stated in Selle vs Associated Motor Boat Co. Ltd [1968] EA apply. The appellate court has a duty to re-valuate both the law and facts subjecting the evidence to fresh and exhaustive scrutiny, while bearing in mind the fact that it did not have the advantage of the trial court in seeing and hearing the witnesses first hand. Also see Okeno vs Republic , that espouses the same principles. In the Selle case , the court stated:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
7. From the Memorandum of Appeal and the submissions of the parties, I would crystallise the issues into three:
iv. If the trial learned Magistrate erred in apportioning liability at 50:50.
v. Whether the award of damages was inordinately low as to warrant the intervention of the appellate court.
vi. Who should bear the costs of the appeal .
Analysis and determination .
8. During the trial, the Plaintiff was the only witness, as PW1. The Plaintiff adopted his witness statement dated 17 th July 2023, produced the documents in support of the claim and added that he was yet to recover from the injuries or walk properly. In his statement, he averred that on the material day, he was aboard a motor cycle riding as a passenger along the Migori – Kisii road, when the defendants motor vehicle registration number KDG 813M was carelessly and negligently driven and it joined the main road from a feeder road and knocked him causing the accident and subsequent injuries. He blamed the driver of the motor vehicle for the accident.
9. In cross examination, he stated that he was headed to Kisii when the accident occurred. They were on the highway and they were moving downhill when the Defendants motor vehicle joined the road from their right side and their motor cycle hit the vehicle as it suddenly got onto the road and caused the accident. He later lost consciousness as he was taken to the hospital.
10. The defence called the 2 nd Defendant as its sole witness. He stated that he was the driver of motor vehicle registration number KGD 813M when the accident occurred. In the witness statement of the driver, he confirmed the accident occurred and from the sketch drawn, the motor cycle was hit while on the pedestrian crossing, with the motor vehicle approaching the main road from the feeder road.
11. Upon hearing the witnesses and examining the documents, the trial Magistrate made a finding of liability at 50:50 and general damages of Kshs. 200,000.00 and special damages of Kshs. 3,450.00 .
Liability .
12. From the evidence on record, it is clear from the evidence on record that the main cause of the accident was the 2 nd Defendant joining the main road right in the path of the motor cycle. From the sketch drawn by the 2 nd driver, the motor cycle hit the vehicle right side right at the junction of the feeder road and the main road. As a driver joining the main road, he had a duty to ensure that the road was clear of motorists, riders and pedestrians before proceeding to join the main road.
13. In addition, the police who visited the scene blamed the motor vehicle for the occurrence of the accident. The trial court equally noted that the Plaintiff had stated that the motor vehicle was joining the main road from the feeder road. Relying on the decision in Peter Kanithi Kamuyu vs Aden Guyo Haro (2014) eKLR , the trail court proceeded to disregard that evidence and apportioned liability at 50:50. He stated that the motor cycle should have slowed down to allow the motor vehicle pass before proceeding.
14. It is noteworthy that being on the feeder road, the motor vehicle is required to slow down, ensure the main road is clear before joining the said road. The driver had a greater duty to ensure safety of the drivers, riders and pedestrians on the main rod before attempting to join the road. For failing to do so, the 2 nd Defendant bears the greater responsibility for the accident. While the rider could slow down on noting the driver approach the main road, the duty on the driver was not diminished.
15. The Respondent correctly quoted the decision in Henderson vs Henry E Jenkins & Sons (1970) AC 282 at 301 which was quoted with approval by the Court in the case of Muema (Suing as the Administratix of the Estate of the Late Ibrahim Mwanga Mwaizai-Deceased) vs Njiru & Another (2025) KEMC 299 (KLR) where it was held that:
“ In an action of negligence, the plaintiff must allege, and has the burden of proving that the accident was caused by negligence on the part of the Defendants. That is the issue throughout the trial, and in giving judgement at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the Defendants, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof does not shift. But if in the cause of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the Plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference ”.
16. While the inference in the case is accurate, the trail learned Magistrate fell into error by failing to find on the weight of the evidence that the Plaintiff had discharged his burden of proof by demonstrating the culpability of the 2 nd Defendant in failing to take proper care while approaching the main road.
17. Finally, on this issue, the dicta in the cited case of Masembe vs Sugar Corporation and Another [2002] 2 EA 434 , is apt. The court in the decision held that:
" When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationery object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object ."
18. In consideration of the circumstances of the accident, I am inclined to review the determination of the trail learned Magistrates and determine liability at 90:10 in favour of the Appellant .
Quantum of damages .
19. From the unchallenged medical records, the treatment notes dated 10 th July 2023, P3 Form dated 10 th July 2023 and medical report dated 13 th July 2023 prepared by RCO Peninah Otago, presented before court by the Plaintiff, the Plaintiff suffered the following injuries:
vii. Bruised hands
viii. Bruised left leg and thigh medial aspect
ix. Medial malleolus fracture, left ankle
x. Weber B fracture .
He was treated at Migori County Referral Hospital and treated with dressing, analgesics, backslide and antibiotics. At the time of examination, the Plaintiff was unable to use his left leg, healing scars on both hands, healing scars on knees and healing wound on the left thigh. Disability was assessed at 50%.
20. In reaching the quantum of damages, the court stated that no x-rays were presented to confirm the fractures and concluded that the injuries were soft tissue injuries and made the award of Kshs. 200,000.00.
21. It is now settled that the standard of proof for civil cases is on a balance of probabilities. In concurrence with the dictates of section 107 of the Evidence Act, Cap 80 of the Laws of Kenya, the Plaintiff was required to present his evidence and as in the present case where they were unchallenged, and prepared by professionals who examined the Plaintiff, there was no basis to decline to admit the medical records as the true representation of the injuries the Plaintiff suffered. In addition, I note that the reports were made within one week of the accident, I am persuaded that there was no basis to overlook the various medical reports.
22. In that regard, while the award for appropriate for soft tissue injuries, the injuries suffered by the Plaintiff were more than soft tissue injuries. It then follows that the award was manifestly low and the appellate court is thus enjoined to disturb the same.
23. In so doing, I am guided by the decision in Butt vs Khan Civil Appeal No. 40 of 1997 . The court determined that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect, and so arrive at a figure which was either inordinately high or low.”
24. This is thus an appropriate case that requires the intervention of the appellate court. I have considered the decisions cited both at the trail and in the submissions on appeal. The Appellant has proposed Kshs. 2,000,000.00 in general damages. The Respondent has proposed the court to maintain the award of Kshs. 200,000.00 and has cited in West Kenya Sugar Company Ltd vs David Luka Shirandula [2017] eKLR . I find both proposals exaggerated.
25. Before the trial court, the Defendants cited the decision in Mbaka Nguru & Another vs James George Rakwar (1998) eKLR where the court held that:
“ The award must however reflect the trend of previous, recent, and comparable awards, considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan condition ”.
26. The cases cited by the Defendants at the trial are more comparable to the present case than those cited at the appeal. These are Savannah International Ltd v Muka (Civil Appeal 31 of 2018) [2022] КЕНC 675 (KLR) (14 June 2022) (Judgment ), Ruso v Njiriri (Civil Appeal 35 of 2023) [2024] КЕНС 11349 (KLR) (Civil) (26 September 2024) (Judgment ) and Okirigiti & Another v Okumu (Civil Appeal E009 of 2023) [2024| КЕНС 10628 (KLR) (12 September 2024) (Judgment ), where the awards ranged between Kshs. 400,000.00 and Kshs. 700,000.00.
27. I am persuaded that in consideration of the present injuries and the cited cases, an award of Kshs. 600,000.00 is fair and reasonable and I award the same.
Disposition.
28. I will thus allow the appeal and order as follows:
a. The judgment of the learned trial Magistrates delivered on the 28 th March 2025 is hereby set aside.
b. Judgment is entered for the Plaintiff as against the Defendants jointly and severally as follows:
i. Liability 90:10 in favour of the Plaintiff.
ii. General damages Kshs. 600,000.00
iii. Special damages Kshs. 3,450.00
iv. Costs and interest are awarded to the Plaintiff, both of the appeal and the trial before the trial court .
Dated, signed and delivered virtually via Microsoft Teams this 13 th day of August 2026.
HCCA NO. E049 OF 2025 STEPHEN O. OPODI VS MONICA MAINA & ANOTHER JUDGMENT Pg 8
JUDGMENT.
1. By a plaint dated 17 th July 2023 and filed on the 25 th July 2023 , the Plaintiff sued the Defendants seeking for general and special damages arising from a road traffic accident that occurred on the 10 th July 2023 along the Migori - Kisii road. The accident involved the Plaintiff, a pillion passenger and the Defendants motor vehicle registration number KDG 813M, Toyota Probox .
2. The Defendants were served with the pleadings and filed a Statement of Defence to the claim, denying the allegations of accident and negligence by the Plaintiff and instead attributed the accident to the negligence of the Plaintiff. They sought that the claim be dismissed.
3. The suit proceeded for trial and on the 28 th March 2025, the court delivered its determination on the claim by awarding the Plaintiff as follows:
a. Liability 50:50
b. General damages Kshs. 200,000.00
c. Less 50% Kshs. 100,000.00
Subtotal Kshs. 100,000.00
d. Special damages Kshs. 3,450.00
Total Kshs. 103,450.00
The Plaintiff was also awarded the costs of the suit and interest on the award.
4. The Plaintiff was dissatisfied with both the determination on liability and quantum and filed their Memorandum of Appeal dated 26 th March 2025. In the Memorandum, the Appellant sets out the Grounds as below:
a. That the learned Magistrate erred in law and fact in the manner she apportioned liability which was against the weight of the evidence.
b. That the learned Magistrate exhibited open bias in favour of the Respondent by apportioning liability against the Appellant at 50% without basis.
c. That the award on general damages was too low considering the fact that the Appellant had sustained fracture injuries.
d. That the learned trial Magistrate erred in law and fact by seemingly pouring cold water on the evidence tendered in support of the Appellant's case in the subordinate court without giving any reason for doing so.
e. That the Learned Magistrate erred in both law and fact by failing to consider, analyse and appreciate the law and appellant's written submissions.
f. The Honourable Magistrate erred in fact and in law in failing to appreciate the law relating to adversarial judicial system in Kenya.
g. It is proposed to ask this Court for Orders that:
i. The Appeal be allowed.
ii. The Judgment delivered by the trial Magistrate, on the Liability and the Quantum be set aside.
iii. That the costs of this Appeal be provided for .
5. The parties were invited to file their submissions both in support and opposition to the appeal. They both complied by the Appellant filing their submissions dated 8 th May 2026 and the Respondents filed their submissions dated 3 rd June 2026.
6. This being a first appeal, the principles stated in Selle vs Associated Motor Boat Co. Ltd [1968] EA apply. The appellate court has a duty to re-valuate both the law and facts subjecting the evidence to fresh and exhaustive scrutiny, while bearing in mind the fact that it did not have the advantage of the trial court in seeing and hearing the witnesses first hand. Also see Okeno vs Republic , that espouses the same principles. In the Selle case , the court stated:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
7. From the Memorandum of Appeal and the submissions of the parties, I would crystallise the issues into three:
iv. If the trial learned Magistrate erred in apportioning liability at 50:50.
v. Whether the award of damages was inordinately low as to warrant the intervention of the appellate court.
vi. Who should bear the costs of the appeal .
Analysis and determination .
8. During the trial, the Plaintiff was the only witness, as PW1. The Plaintiff adopted his witness statement dated 17 th July 2023, produced the documents in support of the claim and added that he was yet to recover from the injuries or walk properly. In his statement, he averred that on the material day, he was aboard a motor cycle riding as a passenger along the Migori – Kisii road, when the defendants motor vehicle registration number KDG 813M was carelessly and negligently driven and it joined the main road from a feeder road and knocked him causing the accident and subsequent injuries. He blamed the driver of the motor vehicle for the accident.
9. In cross examination, he stated that he was headed to Kisii when the accident occurred. They were on the highway and they were moving downhill when the Defendants motor vehicle joined the road from their right side and their motor cycle hit the vehicle as it suddenly got onto the road and caused the accident. He later lost consciousness as he was taken to the hospital.
10. The defence called the 2 nd Defendant as its sole witness. He stated that he was the driver of motor vehicle registration number KGD 813M when the accident occurred. In the witness statement of the driver, he confirmed the accident occurred and from the sketch drawn, the motor cycle was hit while on the pedestrian crossing, with the motor vehicle approaching the main road from the feeder road.
11. Upon hearing the witnesses and examining the documents, the trial Magistrate made a finding of liability at 50:50 and general damages of Kshs. 200,000.00 and special damages of Kshs. 3,450.00 .
Liability .
12. From the evidence on record, it is clear from the evidence on record that the main cause of the accident was the 2 nd Defendant joining the main road right in the path of the motor cycle. From the sketch drawn by the 2 nd driver, the motor cycle hit the vehicle right side right at the junction of the feeder road and the main road. As a driver joining the main road, he had a duty to ensure that the road was clear of motorists, riders and pedestrians before proceeding to join the main road.
13. In addition, the police who visited the scene blamed the motor vehicle for the occurrence of the accident. The trial court equally noted that the Plaintiff had stated that the motor vehicle was joining the main road from the feeder road. Relying on the decision in Peter Kanithi Kamuyu vs Aden Guyo Haro (2014) eKLR , the trail court proceeded to disregard that evidence and apportioned liability at 50:50. He stated that the motor cycle should have slowed down to allow the motor vehicle pass before proceeding.
14. It is noteworthy that being on the feeder road, the motor vehicle is required to slow down, ensure the main road is clear before joining the said road. The driver had a greater duty to ensure safety of the drivers, riders and pedestrians on the main rod before attempting to join the road. For failing to do so, the 2 nd Defendant bears the greater responsibility for the accident. While the rider could slow down on noting the driver approach the main road, the duty on the driver was not diminished.
15. The Respondent correctly quoted the decision in Henderson vs Henry E Jenkins & Sons (1970) AC 282 at 301 which was quoted with approval by the Court in the case of Muema (Suing as the Administratix of the Estate of the Late Ibrahim Mwanga Mwaizai-Deceased) vs Njiru & Another (2025) KEMC 299 (KLR) where it was held that:
“ In an action of negligence, the plaintiff must allege, and has the burden of proving that the accident was caused by negligence on the part of the Defendants. That is the issue throughout the trial, and in giving judgement at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the Defendants, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof does not shift. But if in the cause of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the Plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference ”.
16. While the inference in the case is accurate, the trail learned Magistrate fell into error by failing to find on the weight of the evidence that the Plaintiff had discharged his burden of proof by demonstrating the culpability of the 2 nd Defendant in failing to take proper care while approaching the main road.
17. Finally, on this issue, the dicta in the cited case of Masembe vs Sugar Corporation and Another [2002] 2 EA 434 , is apt. The court in the decision held that:
" When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationery object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object ."
18. In consideration of the circumstances of the accident, I am inclined to review the determination of the trail learned Magistrates and determine liability at 90:10 in favour of the Appellant .
Quantum of damages .
19. From the unchallenged medical records, the treatment notes dated 10 th July 2023, P3 Form dated 10 th July 2023 and medical report dated 13 th July 2023 prepared by RCO Peninah Otago, presented before court by the Plaintiff, the Plaintiff suffered the following injuries:
vii. Bruised hands
viii. Bruised left leg and thigh medial aspect
ix. Medial malleolus fracture, left ankle
x. Weber B fracture .
He was treated at Migori County Referral Hospital and treated with dressing, analgesics, backslide and antibiotics. At the time of examination, the Plaintiff was unable to use his left leg, healing scars on both hands, healing scars on knees and healing wound on the left thigh. Disability was assessed at 50%.
20. In reaching the quantum of damages, the court stated that no x-rays were presented to confirm the fractures and concluded that the injuries were soft tissue injuries and made the award of Kshs. 200,000.00.
21. It is now settled that the standard of proof for civil cases is on a balance of probabilities. In concurrence with the dictates of section 107 of the Evidence Act, Cap 80 of the Laws of Kenya, the Plaintiff was required to present his evidence and as in the present case where they were unchallenged, and prepared by professionals who examined the Plaintiff, there was no basis to decline to admit the medical records as the true representation of the injuries the Plaintiff suffered. In addition, I note that the reports were made within one week of the accident, I am persuaded that there was no basis to overlook the various medical reports.
22. In that regard, while the award for appropriate for soft tissue injuries, the injuries suffered by the Plaintiff were more than soft tissue injuries. It then follows that the award was manifestly low and the appellate court is thus enjoined to disturb the same.
23. In so doing, I am guided by the decision in Butt vs Khan Civil Appeal No. 40 of 1997 . The court determined that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect, and so arrive at a figure which was either inordinately high or low.”
24. This is thus an appropriate case that requires the intervention of the appellate court. I have considered the decisions cited both at the trail and in the submissions on appeal. The Appellant has proposed Kshs. 2,000,000.00 in general damages. The Respondent has proposed the court to maintain the award of Kshs. 200,000.00 and has cited in West Kenya Sugar Company Ltd vs David Luka Shirandula [2017] eKLR . I find both proposals exaggerated.
25. Before the trial court, the Defendants cited the decision in Mbaka Nguru & Another vs James George Rakwar (1998) eKLR where the court held that:
“ The award must however reflect the trend of previous, recent, and comparable awards, considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan condition ”.
26. The cases cited by the Defendants at the trial are more comparable to the present case than those cited at the appeal. These are Savannah International Ltd v Muka (Civil Appeal 31 of 2018) [2022] КЕНC 675 (KLR) (14 June 2022) (Judgment ), Ruso v Njiriri (Civil Appeal 35 of 2023) [2024] КЕНС 11349 (KLR) (Civil) (26 September 2024) (Judgment ) and Okirigiti & Another v Okumu (Civil Appeal E009 of 2023) [2024| КЕНС 10628 (KLR) (12 September 2024) (Judgment ), where the awards ranged between Kshs. 400,000.00 and Kshs. 700,000.00.
27. I am persuaded that in consideration of the present injuries and the cited cases, an award of Kshs. 600,000.00 is fair and reasonable and I award the same.
Disposition.
28. I will thus allow the appeal and order as follows:
a. The judgment of the learned trial Magistrates delivered on the 28 th March 2025 is hereby set aside.
b. Judgment is entered for the Plaintiff as against the Defendants jointly and severally as follows:
i. Liability 90:10 in favour of the Plaintiff.
ii. General damages Kshs. 600,000.00
iii. Special damages Kshs. 3,450.00
iv. Costs and interest are awarded to the Plaintiff, both of the appeal and the trial before the trial court .
Dated, signed and delivered virtually via Microsoft Teams this 13 th day of August 2026.
HCCA NO. E049 OF 2025 STEPHEN O. OPODI VS MONICA MAINA & ANOTHER JUDGMENT Pg 8