[1] This appeal arose from the decision of the Senior Principal Magistrate in Oyugis Senior Principal Magistrate’s Civil Case No. 170 of 2022. The appellant was the plaintiff in that suit and his cause of action was that, on the 26th July 2022, he was lawfully riding on an unknown motor cycle along the Oyugis-Kisumu Road when, at Sikri area or thereabouts, the defendant’s servant or agent so negligently drove its Motor Vehicle Registration No. KBQ 547T that it veered off the road and rolled, thereby hitting the motor cycle and causing him bodily injuries. The appellant supplied the Particulars of Negligence at Paragraph 4 of the Plaint along with Particulars of Injuries suffered and Particulars of Special Damages. Consequently, the appellant filed the lower court suit claiming general and special damages for pain, suffering and loss of amenities.
[2] The respondent denied the appellant’s allegations vide the Defence dated 30th November 2022. The defendant denied that the appellant was riding an unknown motorcycle as alleged or that he was involved in an accident in which he sustained injuries as claimed. In particular, the defendant denied the particulars of negligence as set out by the appellant in his Plaint. In the alternative, the defendant blamed the appellant for the accident and set out the particulars of negligence at paragraph 8 of its Defence. Thus, the respondent prayed for the dismissal of this suit with costs.
[3] Upon hearing the parties, the lower court was satisfied that the accident occurred as a matter of fact and that the appellant was injured as a result thereof. However, the court was not convinced as to the exact cause of the accident. He therefore apportioned liability at 50:50 and assessed general damages at Kshs. 150,000/=. The lower court found the special damages of Kshs. 7,050/= proved as claimed. Consequently, judgment was entered in favour of the appellant in the total sum of Kshs. 157,050/= together with interest and costs of the suit.
[4] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 10th August 2023 on the following grounds:
[a] That the learned magistrate misapprehended in substantial material respects the nature and legal tenets of the appellant’s pleaded claim and as a result arrived at an erroneous and unjust decision.
[b] That the learned magistrate’s finding on liability in the ratio of 50:50 despite the evidence tendered constitutes failure and miscarriage of justice.
[c] That the learned magistrate erred in law and fact in disregarding the appellants evidence.
[d] That the learned magistrate erred in law and fact in disregarding the proof of liability as presented by the appellant and in failing to properly analyze the same and consider the evidence before him thus arriving at an erroneous decision.
[e] That the learned magistrate erred in law and fact by awarding the appellant damages and/or quantum that is inordinately low and by failing to consider the authorities submitted and injuries suffered by the appellant.
[f] That the learned magistrate erred in law in failing to accord any or due probative weight to the evidence tendered in support of the appellant’s case, thereby deciding the matter against the weight of evidence that had been adduced.
[g] That the judgement of the trial magistrate has occasioned a failure of justice and/or a miscarriage of justice.
[5] Therefore, the appellant prayed that his appeal be allowed, the findings and entire judgement of the lower court be set aside and costs of this appeal be granted.
[6] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 4th March 2025. The appellant complied and filed written submissions dated 14th April 2025. He proposed the following issues for determination:
[a] Whether or not the learned magistrate erred by apportioning liability in the ratio of 50:50?
[b] Whether or not the learned trial magistrate erred in awarding general damages?
[c] Whether or not the appeal should be allowed?
[7] On liability, the appellant contended that the trial court erred in law by finding that he bore partial liability for the injuries sustained in the accident. In his submission, this finding was contrary to the weight of the evidence adduced before the lower court. He pointed out that the evidence presented by him and police reports pointed to the respondent's full liability for the accident in so far as it was proved that the respondent’s driver failed to keep a safe distance and hit the appellant from behind; which act is in fact an outright illegality under the Traffic Act. He urged the Court to find that the lower court's decision to apportion liability is, therefore, based on an incorrect interpretation of the facts.
[8] The appellant submitted on the standard of proof in civil cases and relied on the cases of Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR and Miller v Minister of Pensions (1947) 2 ALL ER 372. In the latter case, it was observed thus with regard to the standard of proof in civil cases:
That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not', the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained."
[9] The appellant pointed out that the respondent’s driver testified before the lower court as DW1 and confirmed that he was driving the Motor Vehicle Reg. No. KBQ 547 T at the material time and acknowledged that the accident happened. He submitted that in the circumstances liability ought to have been fixed at 100% as against the respondent because, the act of hitting the appellant from behind was in itself a glaring indication of the reckless speed.
[10] The appellant placed reliance on the case of Kenya Breweries Ltd v. Scolastica Waithira Wanjiru [2005] eKLR, where the Court of Appeal held that a trial court must be cautious in apportioning liability where the evidence does not support such a finding. In the appellant’s submission, the respondent's actions were the proximate cause of the accident, since no contributory negligence on the part of the appellant was demonstrated.
[11] On the issue of quantum, the appellant submitted that the sum awarded by the trial court was so inordinately low as to amount to an erroneous award taking into account the severity of the injuries sustained. The appellant reiterated the injuries suffered and urged the Court to take into consideration the evidence tendered in that regard by way of oral testimonies as well as the medical reports availed before the lower court. He therefore posited that trial court's award Kshs. 150,000/= only does not adequately compensate him for his pain and suffering. He referred to the case of West (H) & Son Ltd v Shepherd [1964] AC. 326, 345 for the proposition that an award of general damages must be reasonable.
[12] As to the applicable principles, the appellant relied on the pronouncement of the Court of Appeal in Southern Engineering Company Ltd v Mutia [1985] eKLR that:
“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question.
...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought.
"The learned Judge in the present case made no mention of inflation. Whether or not he had it in mind there is no doubt that, had the case been heard today, "(i.e January, 1981)" the Court could have awarded Mr. Burbidge a very much higher figure."
"I also know that the days of small and stingy awards are gone. They were decidedly miserly in any event, like Kshs. 20,000.00 for the loss of a forearm or Kshs. 50,000.00 for the loss of an eye. Even without the curse of inflation they were niggardly. I remember but ignore them. We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives."
[13] Accordingly, the appellant urged the Court to set aside the award made by the lower court and to assess and award such quantum of damages that is not only reasonable, taking into account the peculiar circumstances of the appellant’s case, but also comparable to what other courts have awarded in relatively similar situations. The appellant also urged the Court to take into account the prevailing inflationary trends in the Kenyan economy.
[14] On his part, the appellant proposed an award of Kshs. 600,000/= as general damages for his injuries and based the proposal on the following authorities:
[a] Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR
[b] Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd (2006) eKLR
[c] Francis Ochieng & another v Alice Kajimba (2015) eKLR [d] Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007
[15] In the respondent’s written submissions dated 24th March 2025, it maintained its posturing that the appellant herein was solely and entirely responsible for the accident for the reason that he risked his own life by riding on an unknown motor cycle on a busy public highway. The respondent urged the Court to rely on the evidence of its driver who testified that the said unknown motor cycle rammed into the subject motor vehicle; and that when he stopped and got out of the vehicle, he checked on the victims who were on the tarmac and noted that none of them had protective gears on.
[16] The respondent also urged the Court to note that its driver left the scene to go and report the matter at Oyugis Police Station but when he returned to the scene of the accident with the Police, the victims had already left and disappeared. In the submission of the respondent, the appellant failed to discharge his legal burden of proof to establish that the accident was attributable to the respondent's negligence. It relied on the case of Put Saraievo Gen. Eng. Co. Ltd v Esther W. Nieri & Johnson Mwanqi Gucha (Suing as The Legal Representative of the Estate of Sylvester Muhia Gucha (Deceased)) And 2 Others (2014) eKLR where the court rendered itself thus:
"There is nothing to suggest that the learned magistrate misdirected himself on the evidence on the manner the accident happened; the collision of the two vehicles occurred on the left lane of the road. Based on the evidence before him, the learned magistrate concluded, quite correctly in my view, that it was the lorry driver who veered from his lane into the left lane on which the oncoming saloon car was travelling and thus caused the accident. Having come to this conclusion, there was no case for contributory negligence and the driver of the lorry should have been held solely responsible for the accident. It was wrong for the learned magistrate to have apportioned liability to the driver of the saloon car... "
[17] In view of the foregoing, the respondent urged the Court to hold the appellant 100% liable for the accident, contending that he was the author of his own misfortune.
[18] On quantum, the respondent urged the Court to take into consideration the injuries pleaded in the Plaint, which in its submission were essentially soft tissue injuries. In its view, an award of Kshs. 100,000/= less contribution would be sufficient compensation in the circumstances. The respondent relied on Milicent Atieno Ochuonyo v Katola Richard [2015] eKLR where the Court held as follows:
"Awards must be reasonable and assessed with moderation. So far as possible, comparable injuries should be compensated by comparable awards. The court has to strike a balance between endeavoring to award a just amount so far as money can ever compensate and entering a realm of very high awards which can only in the end have deleterious effect. "
[19] The respondent also referred the Court to the case of Francis Omari Ogaro v J A O (minor suing through next friend and father G O D (2021)) eKLR, wherein the lower court’s award of Kshs. 280,000/= as general damages was found to be excessive on appeal and was therefore reduced to Kshs. 150,000/=.
[20] With regard to special damages, the respondent submitted that it is now trite law that the same must not only be specifically pleaded but also strictly proved. Accordingly, the respondent urged the Court to only award such an amount as evidenced by the receipts on record.
[21] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
[22] I have perused the record of the proceedings held before the lower court and note that the appellant testified on the 10th July 2023 and basically adopted his witness statement dated 19th October 2022. He stated that on or about 26th July 2022, he was a lawful rider of an unknown motor cycle along Oyugis-Kisumu Road when, at Sikri area or thereabouts, he was involved in a road traffic accident. He stated that the respondent’s motor vehicle Registration No. KBQ 547T was so negligently, recklessly and/or carelessly driven by the respondent’s driver or agent that it veered off the road and rolled thereby causing an accident and occasioning him harm, loss and damage. He added that he sustained the following injuries from which he had fully healed:
[a] Bruises on the right upper limb
[b] Bruises on the left upper limb
[c] Blunt trauma to the left 1st finger
[d] Bruises on the right lower limb
[e] Chest contusion.
[f] Deep cut wounds on the left hand
[23] It was the testimony of the appellant that he was rushed to Rachuonyo Sub-County Hospital for treatment; and that he thereafter went to Oyugis Police Station where he recorded a statement and was issued with a P3 form and Police Abstract. He also stated that before filing this suit he incurred the following expenses;
[a] Medical report Kshs. 6,500/=
[b] Copy of records Kshs. 550/=
[24] The appellant produced two receipts marked Plaintiff’s Exhibit 4(b) and 5(b) in proof of the special damages claimed as Exhibits. He also identified other documents presented before the lower court in support of his case, including the P3 Form, Police Abstract, Medical Report.
[25] The appellant called Dr. Morebu Peter Momanyi, a Senior Medical Officer and a general practitioner based in Kisii as PW2. He confirmed to the lower court, relying on his Medical Report, that he examined the appellant on 5th August 2022; and that the appellant reported to have been involved in a road traffic accident in which he suffered multiple severe injuries. The report further shows that the appellant was attended to at Rachuonyo Sub-County Hospital. Upon examination, PW2 found that the appellant had multiple healing wounds on his body with tenderness on the limbs and chest. His conclusion was therefore that the appellant had sustained multiple severe body injuries; and that recovery would take a long time. PW2 further opined that the appellant would have to use painkillers which are not only expensive but also have bad side effects. He further stated that, although the wounds were healing they would leave the appellant with prominent disfiguring permanent scars, thereby creating a permanent disability. He produced the Medical Report as the Plaintiff’s Exhibit No. 4(a) before the lower court.
[26] Philip Otieno (PW3) is a Clinical Officer based at Rachuonyo Sub-County Hospital. He testified that the appellant, visited their facility complaining of having been injured in a road traffic accident. He noted that the appellant had suffered the following injuries:
[a] Bruises on the forearm of both limbs
[b] Deep cut wound on the 2nd finger on the left side and tenderness on movement
[c] Bruises on the right lower limb, localized at the ankle joint which was tender and swollen.
[27] PW3 confirmed that he filled the P3 Form for the appellant in which he classified his injuries as “Maim”. He produced the appellant’s treatment notes and the P3 Form duly filled and signed as the Plaintiff’s Exhibit No. 1 and 2, respectively. In cross-examination, PW3 mentioned that the appellant also suffered a fracture of the 1st finger.
[28] The appellant’s last witness was No. 232742 PC Vane Bosibori (PW4), a police officer who was then performing traffic duties at Oyugis Police Station. She produced a Police Abstract in respect of the subject accident and confirmed that Kennedy Omondi Abeka and the appellant herein, Tertio Juma Odera, were injured in the said accident. She also mentioned that the accident involved Motor Vehicle Registration No. KBQ 547T, Mercedes Benz and an unknown motorcycle.
[29] It was also the evidence of PW4 that both the rider of the motorcycle and the pillion passenger suffered injuries. The Police Abstract was marked the Plaintiff’s Exhibit 3 before the subordinate court.
[30] By consent, an order was made that the evidence of PW4 be adopted in Oyugis SPMCC No. 171 of 2022; and thereupon the appellant closed his case. On behalf of the respondent, its driver, Johana Kipkirui Sang testified as DW1 on 10th September 2024. He adopted his witness statement dated 9th February 2023 and confirmed that he was driving Motor Vehicle Registration No. KBQ547T on the material date as an employee of the respondent. DW1 also confirmed that the motor vehicle was involved in a road traffic accident on the date in question. He however denied that he lost control of the motor vehicle. In his evidence, he was driving at the right speed and had full control of the subject motor vehicle. He blamed the motorcyclist for having rammed onto the lorry from behind.
[31] DW1 further testified that, after the accident he observed the victims and noted that none of them was wearing a helmet or reflective jacket. He added that he left the scene to go and report the accident at Oyugis Police Station, but upon return with the police the victims had vanished. He blamed the motorcyclist for the accident.
[32] In the light of the foregoing, the twin issues for determination are, firstly whether the trial magistrate’s finding on liability is tenable and secondly, whether the quantum awarded is defensible in the circumstances. It is significant to mention at this stage that, although the respondent appeared to challenge the decision of the lower court both on liability and quantum and proposed that the appellant be held 100% liable and the quantum reduced to Kshs. 100,000/= no cross-appeal was filed by it. I have, nevertheless, taken its submissions into account alongside the submissions of the appellant in determining the two issues of liability and quantum.
[33] Needless to say that it was the duty of the appellant to discharge the legal burden of proof, for, Section 107(1) of the Evidence Act, Chapter 80 of the Laws of Kenya, is explicit that:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
[34] Thus, in Statpack Industries v James Mbithi Munyao [2005] eKLR the point was made that:
"It is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone's negligence and his injury. The Plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence. An injury per se is not sufficient to hold someone liable."
[35] Before the lower court, the appellant had alleged negligence and supplied particulars thereof as follows:
[a] Driving too fast at a speed which was excessive in the circumstances.
[b] Failing to keep any or any proper lookout or to have any or any sufficient regard for passengers especially for the plaintiff.
[c] Failing to exercise or maintain any or any proper effective control of Motor Vehicle Registration No. KBQ 547T.
[d] Driving a defective motor vehicle.
[e] Failing to take any or any special care.
[f] Failing to stop, slow down, swerve or in any other way manage or control the said motor vehicle so as to prevent the said accident.
[g] Failing to take any or adequate measures to prevent the vehicle from causing the accident.
[h] Driving while drunk and/or under the influence of intoxicating drugs and/or substances.
[36] As was correctly observed by the learned magistrate, the appellant called a police officer, Vane Bosibori, as PW4; and all she did was produce the Police Abstract. She explained that she took over the matter from a colleague and was therefore unable to explain the circumstances in which the accident occurred. In the circumstances, the learned trial magistrate cannot be faulted for apportioning liability at 50:50 between the parties. Indeed, in Barclays Steward Limited & Another v Waiyaki [1982-88] 1 KAR 1118 it was observed that in such circumstances, both drivers may be held equally liable. The court observed that:
"The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it...Collision is a fact. It is however not reasonably possible to decide on the evidence of Waiyaki and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.
[37] And in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681, Lord Reid had the following to say, which was quoted with approval by the Court of Appeal in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
[38] The trial court was faced with two divergent accounts as to how the accident occurred. He opted to find both parties equally liable. On the basis of the evidence presented, I am unable to fault the lower court for its conclusion. As was observed by Sir Kenneth O'Connor in Peters vs. Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
[39] On quantum, the case of H. West & Son Ltd v Shephard [1964] AC 326 is apposite. It was held therein that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[40] The Court of Appeal amplified the principle aforestated and held as follows in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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 arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages."
[41] As has been noted herein above, the lower court awarded the respondent Kshs. 150,000/= as general damages for the appellant’s pain, suffering and loss of amenities, along with special damages in the sum of Kshs. 7,050/=. There is no doubt that the appellant justified his claim for special damages by producing supporting documents. As such, there is no contention about that aspect of her claim. The contest is whether the quantum of Kshs. 150,000/= is so low as to amount to an incorrect award.
[42] In Stanley Maore v Geoffrey Mwenda [2004] eKLR, the Court of Appeal reiterated that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[43] The appellant pleaded and proved the following injuries by his own testimony as well as the evidence of PW2 and PW3:
[a] Bruises on the right upper limb
[b] Bruises on the left upper limb
[c] Blunt trauma to the left 1st finger
[d] Bruises on the right lower limb
[e] Chest contusion.
[f] Deep cut wounds on the left hand
[44] He relied on the following authorities to buttress his submissions on quantum:
[a] Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR in which the plaintiff sustained bruises on the scalp; bruises on the neck; bruises on the abdomen; bruises on the lower back; cut wound on the left thumb; cut wound on the left palm; and subluxation of the left shoulder joint. The court awarded Kshs. 400,000/= as general damages;
[b] Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd (2006) eKLR where an award of Kshs. 400,000/= was made for a deep cut on the face, multiple pain on both legs, arms and shoulders, abrasion on the lower chin, back ache and chest pain.
[c] Francis Ochieng & another v Alice Kajimba [2015] eKLR where the plaintiff was awarded Kshs. 350,000/= for injuries more less similar than those suffered by the appellant herein.
[d] Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007 in which an award by the lower court of Kshs. 350,000/- as general damages for deep cut wound on the calf muscles of the left leg; laceration on the right knee and right shoulder; contusion on the chest was upheld on appeal.
[45] It is significant that the injuries suffered by the appellant involved the ankle and knee joints; and in the opinion of PW2, the injuries healed with scars that entail some degree of permanent disability. In the premises, the award of Kshs. 150,000/= was on the lower side. I would enhance it to Kshs. 350,000/= on the basis of the authorities cited by the appellant, particularly the case of Francis Ochieng & another v Alice Kajimba (supra) which I find most comparable. It is a recent decision and therefore more in tune with the current inflationary trends.
[46] In the premises, while I find no merit in the appeal on liability, the appeal on quantum is hereby allowed and orders granted as follows:
[a] The judgment and decree of the lower court on quantum is hereby set aside and substituted with an aw
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[2] The respondent denied the appellant’s allegations vide the Defence dated 30th November 2022. The defendant denied that the appellant was riding an unknown motorcycle as alleged or that he was involved in an accident in which he sustained injuries as claimed. In particular, the defendant denied the particulars of negligence as set out by the appellant in his Plaint. In the alternative, the defendant blamed the appellant for the accident and set out the particulars of negligence at paragraph 8 of its Defence. Thus, the respondent prayed for the dismissal of this suit with costs.
[3] Upon hearing the parties, the lower court was satisfied that the accident occurred as a matter of fact and that the appellant was injured as a result thereof. However, the court was not convinced as to the exact cause of the accident. He therefore apportioned liability at 50:50 and assessed general damages at Kshs. 150,000/=. The lower court found the special damages of Kshs. 7,050/= proved as claimed. Consequently, judgment was entered in favour of the appellant in the total sum of Kshs. 157,050/= together with interest and costs of the suit.
[4] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 10th August 2023 on the following grounds:
[a] That the learned magistrate misapprehended in substantial material respects the nature and legal tenets of the appellant’s pleaded claim and as a result arrived at an erroneous and unjust decision.
[b] That the learned magistrate’s finding on liability in the ratio of 50:50 despite the evidence tendered constitutes failure and miscarriage of justice.
[c] That the learned magistrate erred in law and fact in disregarding the appellants evidence.
[d] That the learned magistrate erred in law and fact in disregarding the proof of liability as presented by the appellant and in failing to properly analyze the same and consider the evidence before him thus arriving at an erroneous decision.
[e] That the learned magistrate erred in law and fact by awarding the appellant damages and/or quantum that is inordinately low and by failing to consider the authorities submitted and injuries suffered by the appellant.
[f] That the learned magistrate erred in law in failing to accord any or due probative weight to the evidence tendered in support of the appellant’s case, thereby deciding the matter against the weight of evidence that had been adduced.
[g] That the judgement of the trial magistrate has occasioned a failure of justice and/or a miscarriage of justice.
[5] Therefore, the appellant prayed that his appeal be allowed, the findings and entire judgement of the lower court be set aside and costs of this appeal be granted.
[6] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 4th March 2025. The appellant complied and filed written submissions dated 14th April 2025. He proposed the following issues for determination:
[a] Whether or not the learned magistrate erred by apportioning liability in the ratio of 50:50?
[b] Whether or not the learned trial magistrate erred in awarding general damages?
[c] Whether or not the appeal should be allowed?
[7] On liability, the appellant contended that the trial court erred in law by finding that he bore partial liability for the injuries sustained in the accident. In his submission, this finding was contrary to the weight of the evidence adduced before the lower court. He pointed out that the evidence presented by him and police reports pointed to the respondent's full liability for the accident in so far as it was proved that the respondent’s driver failed to keep a safe distance and hit the appellant from behind; which act is in fact an outright illegality under the Traffic Act. He urged the Court to find that the lower court's decision to apportion liability is, therefore, based on an incorrect interpretation of the facts.
[8] The appellant submitted on the standard of proof in civil cases and relied on the cases of Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR and Miller v Minister of Pensions (1947) 2 ALL ER 372. In the latter case, it was observed thus with regard to the standard of proof in civil cases:
That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not', the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained."
[9] The appellant pointed out that the respondent’s driver testified before the lower court as DW1 and confirmed that he was driving the Motor Vehicle Reg. No. KBQ 547 T at the material time and acknowledged that the accident happened. He submitted that in the circumstances liability ought to have been fixed at 100% as against the respondent because, the act of hitting the appellant from behind was in itself a glaring indication of the reckless speed.
[10] The appellant placed reliance on the case of Kenya Breweries Ltd v. Scolastica Waithira Wanjiru [2005] eKLR, where the Court of Appeal held that a trial court must be cautious in apportioning liability where the evidence does not support such a finding. In the appellant’s submission, the respondent's actions were the proximate cause of the accident, since no contributory negligence on the part of the appellant was demonstrated.
[11] On the issue of quantum, the appellant submitted that the sum awarded by the trial court was so inordinately low as to amount to an erroneous award taking into account the severity of the injuries sustained. The appellant reiterated the injuries suffered and urged the Court to take into consideration the evidence tendered in that regard by way of oral testimonies as well as the medical reports availed before the lower court. He therefore posited that trial court's award Kshs. 150,000/= only does not adequately compensate him for his pain and suffering. He referred to the case of West (H) & Son Ltd v Shepherd [1964] AC. 326, 345 for the proposition that an award of general damages must be reasonable.
[12] As to the applicable principles, the appellant relied on the pronouncement of the Court of Appeal in Southern Engineering Company Ltd v Mutia [1985] eKLR that:
“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question.
...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought.
"The learned Judge in the present case made no mention of inflation. Whether or not he had it in mind there is no doubt that, had the case been heard today, "(i.e January, 1981)" the Court could have awarded Mr. Burbidge a very much higher figure."
"I also know that the days of small and stingy awards are gone. They were decidedly miserly in any event, like Kshs. 20,000.00 for the loss of a forearm or Kshs. 50,000.00 for the loss of an eye. Even without the curse of inflation they were niggardly. I remember but ignore them. We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives."
[13] Accordingly, the appellant urged the Court to set aside the award made by the lower court and to assess and award such quantum of damages that is not only reasonable, taking into account the peculiar circumstances of the appellant’s case, but also comparable to what other courts have awarded in relatively similar situations. The appellant also urged the Court to take into account the prevailing inflationary trends in the Kenyan economy.
[14] On his part, the appellant proposed an award of Kshs. 600,000/= as general damages for his injuries and based the proposal on the following authorities:
[a] Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR
[b] Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd (2006) eKLR
[c] Francis Ochieng & another v Alice Kajimba (2015) eKLR [d] Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007
[15] In the respondent’s written submissions dated 24th March 2025, it maintained its posturing that the appellant herein was solely and entirely responsible for the accident for the reason that he risked his own life by riding on an unknown motor cycle on a busy public highway. The respondent urged the Court to rely on the evidence of its driver who testified that the said unknown motor cycle rammed into the subject motor vehicle; and that when he stopped and got out of the vehicle, he checked on the victims who were on the tarmac and noted that none of them had protective gears on.
[16] The respondent also urged the Court to note that its driver left the scene to go and report the matter at Oyugis Police Station but when he returned to the scene of the accident with the Police, the victims had already left and disappeared. In the submission of the respondent, the appellant failed to discharge his legal burden of proof to establish that the accident was attributable to the respondent's negligence. It relied on the case of Put Saraievo Gen. Eng. Co. Ltd v Esther W. Nieri & Johnson Mwanqi Gucha (Suing as The Legal Representative of the Estate of Sylvester Muhia Gucha (Deceased)) And 2 Others (2014) eKLR where the court rendered itself thus:
"There is nothing to suggest that the learned magistrate misdirected himself on the evidence on the manner the accident happened; the collision of the two vehicles occurred on the left lane of the road. Based on the evidence before him, the learned magistrate concluded, quite correctly in my view, that it was the lorry driver who veered from his lane into the left lane on which the oncoming saloon car was travelling and thus caused the accident. Having come to this conclusion, there was no case for contributory negligence and the driver of the lorry should have been held solely responsible for the accident. It was wrong for the learned magistrate to have apportioned liability to the driver of the saloon car... "
[17] In view of the foregoing, the respondent urged the Court to hold the appellant 100% liable for the accident, contending that he was the author of his own misfortune.
[18] On quantum, the respondent urged the Court to take into consideration the injuries pleaded in the Plaint, which in its submission were essentially soft tissue injuries. In its view, an award of Kshs. 100,000/= less contribution would be sufficient compensation in the circumstances. The respondent relied on Milicent Atieno Ochuonyo v Katola Richard [2015] eKLR where the Court held as follows:
"Awards must be reasonable and assessed with moderation. So far as possible, comparable injuries should be compensated by comparable awards. The court has to strike a balance between endeavoring to award a just amount so far as money can ever compensate and entering a realm of very high awards which can only in the end have deleterious effect. "
[19] The respondent also referred the Court to the case of Francis Omari Ogaro v J A O (minor suing through next friend and father G O D (2021)) eKLR, wherein the lower court’s award of Kshs. 280,000/= as general damages was found to be excessive on appeal and was therefore reduced to Kshs. 150,000/=.
[20] With regard to special damages, the respondent submitted that it is now trite law that the same must not only be specifically pleaded but also strictly proved. Accordingly, the respondent urged the Court to only award such an amount as evidenced by the receipts on record.
[21] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
[22] I have perused the record of the proceedings held before the lower court and note that the appellant testified on the 10th July 2023 and basically adopted his witness statement dated 19th October 2022. He stated that on or about 26th July 2022, he was a lawful rider of an unknown motor cycle along Oyugis-Kisumu Road when, at Sikri area or thereabouts, he was involved in a road traffic accident. He stated that the respondent’s motor vehicle Registration No. KBQ 547T was so negligently, recklessly and/or carelessly driven by the respondent’s driver or agent that it veered off the road and rolled thereby causing an accident and occasioning him harm, loss and damage. He added that he sustained the following injuries from which he had fully healed:
[a] Bruises on the right upper limb
[b] Bruises on the left upper limb
[c] Blunt trauma to the left 1st finger
[d] Bruises on the right lower limb
[e] Chest contusion.
[f] Deep cut wounds on the left hand
[23] It was the testimony of the appellant that he was rushed to Rachuonyo Sub-County Hospital for treatment; and that he thereafter went to Oyugis Police Station where he recorded a statement and was issued with a P3 form and Police Abstract. He also stated that before filing this suit he incurred the following expenses;
[a] Medical report Kshs. 6,500/=
[b] Copy of records Kshs. 550/=
[24] The appellant produced two receipts marked Plaintiff’s Exhibit 4(b) and 5(b) in proof of the special damages claimed as Exhibits. He also identified other documents presented before the lower court in support of his case, including the P3 Form, Police Abstract, Medical Report.
[25] The appellant called Dr. Morebu Peter Momanyi, a Senior Medical Officer and a general practitioner based in Kisii as PW2. He confirmed to the lower court, relying on his Medical Report, that he examined the appellant on 5th August 2022; and that the appellant reported to have been involved in a road traffic accident in which he suffered multiple severe injuries. The report further shows that the appellant was attended to at Rachuonyo Sub-County Hospital. Upon examination, PW2 found that the appellant had multiple healing wounds on his body with tenderness on the limbs and chest. His conclusion was therefore that the appellant had sustained multiple severe body injuries; and that recovery would take a long time. PW2 further opined that the appellant would have to use painkillers which are not only expensive but also have bad side effects. He further stated that, although the wounds were healing they would leave the appellant with prominent disfiguring permanent scars, thereby creating a permanent disability. He produced the Medical Report as the Plaintiff’s Exhibit No. 4(a) before the lower court.
[26] Philip Otieno (PW3) is a Clinical Officer based at Rachuonyo Sub-County Hospital. He testified that the appellant, visited their facility complaining of having been injured in a road traffic accident. He noted that the appellant had suffered the following injuries:
[a] Bruises on the forearm of both limbs
[b] Deep cut wound on the 2nd finger on the left side and tenderness on movement
[c] Bruises on the right lower limb, localized at the ankle joint which was tender and swollen.
[27] PW3 confirmed that he filled the P3 Form for the appellant in which he classified his injuries as “Maim”. He produced the appellant’s treatment notes and the P3 Form duly filled and signed as the Plaintiff’s Exhibit No. 1 and 2, respectively. In cross-examination, PW3 mentioned that the appellant also suffered a fracture of the 1st finger.
[28] The appellant’s last witness was No. 232742 PC Vane Bosibori (PW4), a police officer who was then performing traffic duties at Oyugis Police Station. She produced a Police Abstract in respect of the subject accident and confirmed that Kennedy Omondi Abeka and the appellant herein, Tertio Juma Odera, were injured in the said accident. She also mentioned that the accident involved Motor Vehicle Registration No. KBQ 547T, Mercedes Benz and an unknown motorcycle.
[29] It was also the evidence of PW4 that both the rider of the motorcycle and the pillion passenger suffered injuries. The Police Abstract was marked the Plaintiff’s Exhibit 3 before the subordinate court.
[30] By consent, an order was made that the evidence of PW4 be adopted in Oyugis SPMCC No. 171 of 2022; and thereupon the appellant closed his case. On behalf of the respondent, its driver, Johana Kipkirui Sang testified as DW1 on 10th September 2024. He adopted his witness statement dated 9th February 2023 and confirmed that he was driving Motor Vehicle Registration No. KBQ547T on the material date as an employee of the respondent. DW1 also confirmed that the motor vehicle was involved in a road traffic accident on the date in question. He however denied that he lost control of the motor vehicle. In his evidence, he was driving at the right speed and had full control of the subject motor vehicle. He blamed the motorcyclist for having rammed onto the lorry from behind.
[31] DW1 further testified that, after the accident he observed the victims and noted that none of them was wearing a helmet or reflective jacket. He added that he left the scene to go and report the accident at Oyugis Police Station, but upon return with the police the victims had vanished. He blamed the motorcyclist for the accident.
[32] In the light of the foregoing, the twin issues for determination are, firstly whether the trial magistrate’s finding on liability is tenable and secondly, whether the quantum awarded is defensible in the circumstances. It is significant to mention at this stage that, although the respondent appeared to challenge the decision of the lower court both on liability and quantum and proposed that the appellant be held 100% liable and the quantum reduced to Kshs. 100,000/= no cross-appeal was filed by it. I have, nevertheless, taken its submissions into account alongside the submissions of the appellant in determining the two issues of liability and quantum.
[33] Needless to say that it was the duty of the appellant to discharge the legal burden of proof, for, Section 107(1) of the Evidence Act, Chapter 80 of the Laws of Kenya, is explicit that:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
[34] Thus, in Statpack Industries v James Mbithi Munyao [2005] eKLR the point was made that:
"It is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone's negligence and his injury. The Plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence. An injury per se is not sufficient to hold someone liable."
[35] Before the lower court, the appellant had alleged negligence and supplied particulars thereof as follows:
[a] Driving too fast at a speed which was excessive in the circumstances.
[b] Failing to keep any or any proper lookout or to have any or any sufficient regard for passengers especially for the plaintiff.
[c] Failing to exercise or maintain any or any proper effective control of Motor Vehicle Registration No. KBQ 547T.
[d] Driving a defective motor vehicle.
[e] Failing to take any or any special care.
[f] Failing to stop, slow down, swerve or in any other way manage or control the said motor vehicle so as to prevent the said accident.
[g] Failing to take any or adequate measures to prevent the vehicle from causing the accident.
[h] Driving while drunk and/or under the influence of intoxicating drugs and/or substances.
[36] As was correctly observed by the learned magistrate, the appellant called a police officer, Vane Bosibori, as PW4; and all she did was produce the Police Abstract. She explained that she took over the matter from a colleague and was therefore unable to explain the circumstances in which the accident occurred. In the circumstances, the learned trial magistrate cannot be faulted for apportioning liability at 50:50 between the parties. Indeed, in Barclays Steward Limited & Another v Waiyaki [1982-88] 1 KAR 1118 it was observed that in such circumstances, both drivers may be held equally liable. The court observed that:
"The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it...Collision is a fact. It is however not reasonably possible to decide on the evidence of Waiyaki and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.
[37] And in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681, Lord Reid had the following to say, which was quoted with approval by the Court of Appeal in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
[38] The trial court was faced with two divergent accounts as to how the accident occurred. He opted to find both parties equally liable. On the basis of the evidence presented, I am unable to fault the lower court for its conclusion. As was observed by Sir Kenneth O'Connor in Peters vs. Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
[39] On quantum, the case of H. West & Son Ltd v Shephard [1964] AC 326 is apposite. It was held therein that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[40] The Court of Appeal amplified the principle aforestated and held as follows in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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 arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages."
[41] As has been noted herein above, the lower court awarded the respondent Kshs. 150,000/= as general damages for the appellant’s pain, suffering and loss of amenities, along with special damages in the sum of Kshs. 7,050/=. There is no doubt that the appellant justified his claim for special damages by producing supporting documents. As such, there is no contention about that aspect of her claim. The contest is whether the quantum of Kshs. 150,000/= is so low as to amount to an incorrect award.
[42] In Stanley Maore v Geoffrey Mwenda [2004] eKLR, the Court of Appeal reiterated that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[43] The appellant pleaded and proved the following injuries by his own testimony as well as the evidence of PW2 and PW3:
[a] Bruises on the right upper limb
[b] Bruises on the left upper limb
[c] Blunt trauma to the left 1st finger
[d] Bruises on the right lower limb
[e] Chest contusion.
[f] Deep cut wounds on the left hand
[44] He relied on the following authorities to buttress his submissions on quantum:
[a] Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR in which the plaintiff sustained bruises on the scalp; bruises on the neck; bruises on the abdomen; bruises on the lower back; cut wound on the left thumb; cut wound on the left palm; and subluxation of the left shoulder joint. The court awarded Kshs. 400,000/= as general damages;
[b] Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd (2006) eKLR where an award of Kshs. 400,000/= was made for a deep cut on the face, multiple pain on both legs, arms and shoulders, abrasion on the lower chin, back ache and chest pain.
[c] Francis Ochieng & another v Alice Kajimba [2015] eKLR where the plaintiff was awarded Kshs. 350,000/= for injuries more less similar than those suffered by the appellant herein.
[d] Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007 in which an award by the lower court of Kshs. 350,000/- as general damages for deep cut wound on the calf muscles of the left leg; laceration on the right knee and right shoulder; contusion on the chest was upheld on appeal.
[45] It is significant that the injuries suffered by the appellant involved the ankle and knee joints; and in the opinion of PW2, the injuries healed with scars that entail some degree of permanent disability. In the premises, the award of Kshs. 150,000/= was on the lower side. I would enhance it to Kshs. 350,000/= on the basis of the authorities cited by the appellant, particularly the case of Francis Ochieng & another v Alice Kajimba (supra) which I find most comparable. It is a recent decision and therefore more in tune with the current inflationary trends.
[46] In the premises, while I find no merit in the appeal on liability, the appeal on quantum is hereby allowed and orders granted as follows:
[a] The judgment and decree of the lower court on quantum is hereby set aside and substituted with an aw
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