1. The Respondent instituted Keroka MCCC E188 of 2021 through the Plaint dated 25th November 2021 seeking general damages, special damages, costs and interest arising from a road traffic accident alleged to have occurred on 28th June 2021 along the Keroka–Kisii Road involving motor vehicle registration numbers KBG 170R and KCH 604L. The Respondent stated that the accident occurred due to the negligence of driver of motor vehicle registration number KCH 604L.
2. By statement of defence dated 29th December 20221, the Appellant denied occurrence of the accident in the manner pleaded, denying negligence and further denying that the Respondent was involved in the accident or sustained the alleged injuries as pleaded. The Appellant put the Respondent to strict proof of all the allegations contained in the Plaint.
3. By judgment on 18th June 2025, the trail court found the Appellant liable at 100% and awarded the Respondent KES. 200,000 as general damages and KES. 3,650 as special damages together with costs and interest.
4. Aggrieved by the said Judgment, the Appellant lodged the present appeal through the Memorandum of Appeal dated 02nd July 2025 on that:
1) The Learned Trial Magistrate erred in finding that the Respondent was involved in the accident despite the police officer testifying that her name did not appear in the initial or further Occurrence Book entries.
2) The Learned Trial Magistrate erred in relying on the evidence of the Respondent and her eye witness to find that she was involved in the accident despite her name not appearing in the police records.
3) The Learned Trial Magistrate erred in relying on the evidence of the eye witness without independent proof, including a fare paying receipt, to establish that the Respondent was a passenger in motor vehicle registration number KBG 170R.
4) The Learned Trial Magistrate erred in awarding KES. 200,000 as general damages, which the Appellant contends was excessive in the circumstances
5. The Appellant by Written Submissions dated 23rd March 2026 submits that the Respondent failed to prove involvement in the accident and failed to prove that the injuries complained of arose from the accident in question. On the other hand, the Respondent by Written Submissions dated 15th April 2026 oppose the appeal and maintains that the Respondent proved involvement in the accident through oral and documentary evidence and that the award made by the trial court was proper.
6. Having considered the pleadings, evidence, proceedings, Judgment, Records of Appeal and the rival submissions, the following issues arise for determination:
1) Whether the Respondent proved that she was involved in the accident involving motor vehicle registration numbers KBG 170R and KCH 604L
2) Whether the Respondent proved that the injuries complained of arose from the accident
3) Whether the trial court properly entered judgment against the Appellant
4) Whether this Court should interfere with the award of damages made by the trial court
5) Who should bear the costs of the appeal?
7. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. That principle was restated in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR and Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR.
8. On the first issue, the Respondent pleaded that she was lawfully travelling as a passenger in motor vehicle registration number KBG 170R along Keroka-Kisii Road when motor vehicle registration number KCH 604L negligently lost control and collided with the said vehicle causing her injuries.
9. The Statement of Defence denied the Respondent’s involvement and put her to strict proof. The Appellant also framed as one of the issues for determination in the written submissions filed before the subordinate court whether the Plaintiff was involved in the suit accident.
10. The Appellant relied on the evidence of PW5, the police officer, who testified that the Respondent’s name did not appear in either the initial or further O.B. entries relating to the accident. The Appellant argued that had the Respondent truly been involved in the accident, her name would ordinarily have appeared in the police records.
11. The Appellant relied on Al Kamar Trading Company Limited v Harrison Otina [2015] eKLR where the court found that the claimant had failed to adduce sufficient evidence linking him to the accident in question. The court emphasized that proof of occurrence of an accident alone was insufficient without cogent evidence connecting the claimant to the accident. The Appellant also relied on Robert Muriithi Njeru v Diocese of Embu Salesians of Don Bosco [2015] eKLR where the court reiterated that the burden of proof under Sections 107 and 109 of the Evidence Act rests upon the party asserting a fact. In the present matter, the burden rested upon the Respondent to prove that she was involved in the accident and that the injuries complained of arose from that accident.
12. I have reconsidered the evidence on record. Although there was evidence confirming occurrence of the accident involving motor vehicle registration numbers KBG 170R and KCH 604L, the Respondent failed to place before the court conclusive evidence linking her to the accident. Her name did not appear in the initial or further O.B. entries nor in the police abstract as an accident victim. The Respondent’s involvement in the accident was therefore not conclusively demonstrated through the police records or other independent evidence.
13. I therefore find that the Respondent failed to prove on a balance of probabilities that she was involved in the accident involving motor vehicle registration numbers KBG 170R and KCH 604L.
14. On the second issue, the treatment notes from Keroka Sub County Hospital dated 29th June 2021, the P3 Form and the Medical Report of Dr. Roger Hannington Kayo established that the Respondent sustained injuries and received treatment.
15. However, there was no conclusive evidence connecting the injuries sustained by the Respondent to the accident involving motor vehicle registration numbers KBG 170R and KCH 604L. While the Respondent demonstrated that she sustained injuries, she failed to prove that those injuries arose from the accident in question.
16. I therefore find that the Respondent failed to prove that the injuries complained of arose from the accident involving the subject motor vehicles.
17. On the third issue, having found that the Respondent failed to prove involvement in the accident and failed to establish a nexus between the injuries sustained and the accident in question, I find that the trial court fell into error in entering judgment against the Appellant. The burden imposed by Sections 107 and 109 of the Evidence Act was not discharged.
18. On the fourth issue, the Respondent relied on Nancy Oseko v Board of Governors Maasai Girls High School [2011] eKLR, Anwar Ahmed v Hawa Isaack Abdi [2024] KEHC 7204 (KLR), Milgo Alias Henry Kiprono v Fridah Chemutai [2025] KEHC 45 (KLR) and Stanley Kipkoech Cheruiyot & Another v Anna Kemunto Onyiso [2024] eKLR in support of the award on damages. Those authorities dealt with assessment of damages after liability had been established. The Appellant on the other hand relied on Ademdesa & Another v Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR) and F.M (Minor suing through mother and next friend M.W.M) v J.N.N & J.D.K [2020] eKLR in urging the Court to interfere with the award made by the trial court. The Appellant also relied on Kemfro Africa Limited t/a Meru Express Service & Another v A.M. Lubia & Another [1982-88] 1 KAR 727 and Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR on the principles governing interference with awards of damages by an appellate court.
19. However, having found that liability was not proved, it becomes unnecessary to determine whether the award of damages made by the trial court was excessive or whether this Court ought to interfere with the same.
20. On costs, the appeal has succeeded and there is no reason to depart from the general rule that costs follow the event.
21. Consequently, I find that the appeal is meritorious and it is hereby allowed. The Judgment and Decree Keroka MCCC E188 of 2021 are hereby set aside and substituted with an order dismissing the Respondent’s suit with costs. The Appellant shall also have the costs of this appeal.
2. By statement of defence dated 29th December 20221, the Appellant denied occurrence of the accident in the manner pleaded, denying negligence and further denying that the Respondent was involved in the accident or sustained the alleged injuries as pleaded. The Appellant put the Respondent to strict proof of all the allegations contained in the Plaint.
3. By judgment on 18th June 2025, the trail court found the Appellant liable at 100% and awarded the Respondent KES. 200,000 as general damages and KES. 3,650 as special damages together with costs and interest.
4. Aggrieved by the said Judgment, the Appellant lodged the present appeal through the Memorandum of Appeal dated 02nd July 2025 on that:
1) The Learned Trial Magistrate erred in finding that the Respondent was involved in the accident despite the police officer testifying that her name did not appear in the initial or further Occurrence Book entries.
2) The Learned Trial Magistrate erred in relying on the evidence of the Respondent and her eye witness to find that she was involved in the accident despite her name not appearing in the police records.
3) The Learned Trial Magistrate erred in relying on the evidence of the eye witness without independent proof, including a fare paying receipt, to establish that the Respondent was a passenger in motor vehicle registration number KBG 170R.
4) The Learned Trial Magistrate erred in awarding KES. 200,000 as general damages, which the Appellant contends was excessive in the circumstances
5. The Appellant by Written Submissions dated 23rd March 2026 submits that the Respondent failed to prove involvement in the accident and failed to prove that the injuries complained of arose from the accident in question. On the other hand, the Respondent by Written Submissions dated 15th April 2026 oppose the appeal and maintains that the Respondent proved involvement in the accident through oral and documentary evidence and that the award made by the trial court was proper.
6. Having considered the pleadings, evidence, proceedings, Judgment, Records of Appeal and the rival submissions, the following issues arise for determination:
1) Whether the Respondent proved that she was involved in the accident involving motor vehicle registration numbers KBG 170R and KCH 604L
2) Whether the Respondent proved that the injuries complained of arose from the accident
3) Whether the trial court properly entered judgment against the Appellant
4) Whether this Court should interfere with the award of damages made by the trial court
5) Who should bear the costs of the appeal?
7. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. That principle was restated in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR and Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR.
8. On the first issue, the Respondent pleaded that she was lawfully travelling as a passenger in motor vehicle registration number KBG 170R along Keroka-Kisii Road when motor vehicle registration number KCH 604L negligently lost control and collided with the said vehicle causing her injuries.
9. The Statement of Defence denied the Respondent’s involvement and put her to strict proof. The Appellant also framed as one of the issues for determination in the written submissions filed before the subordinate court whether the Plaintiff was involved in the suit accident.
10. The Appellant relied on the evidence of PW5, the police officer, who testified that the Respondent’s name did not appear in either the initial or further O.B. entries relating to the accident. The Appellant argued that had the Respondent truly been involved in the accident, her name would ordinarily have appeared in the police records.
11. The Appellant relied on Al Kamar Trading Company Limited v Harrison Otina [2015] eKLR where the court found that the claimant had failed to adduce sufficient evidence linking him to the accident in question. The court emphasized that proof of occurrence of an accident alone was insufficient without cogent evidence connecting the claimant to the accident. The Appellant also relied on Robert Muriithi Njeru v Diocese of Embu Salesians of Don Bosco [2015] eKLR where the court reiterated that the burden of proof under Sections 107 and 109 of the Evidence Act rests upon the party asserting a fact. In the present matter, the burden rested upon the Respondent to prove that she was involved in the accident and that the injuries complained of arose from that accident.
12. I have reconsidered the evidence on record. Although there was evidence confirming occurrence of the accident involving motor vehicle registration numbers KBG 170R and KCH 604L, the Respondent failed to place before the court conclusive evidence linking her to the accident. Her name did not appear in the initial or further O.B. entries nor in the police abstract as an accident victim. The Respondent’s involvement in the accident was therefore not conclusively demonstrated through the police records or other independent evidence.
13. I therefore find that the Respondent failed to prove on a balance of probabilities that she was involved in the accident involving motor vehicle registration numbers KBG 170R and KCH 604L.
14. On the second issue, the treatment notes from Keroka Sub County Hospital dated 29th June 2021, the P3 Form and the Medical Report of Dr. Roger Hannington Kayo established that the Respondent sustained injuries and received treatment.
15. However, there was no conclusive evidence connecting the injuries sustained by the Respondent to the accident involving motor vehicle registration numbers KBG 170R and KCH 604L. While the Respondent demonstrated that she sustained injuries, she failed to prove that those injuries arose from the accident in question.
16. I therefore find that the Respondent failed to prove that the injuries complained of arose from the accident involving the subject motor vehicles.
17. On the third issue, having found that the Respondent failed to prove involvement in the accident and failed to establish a nexus between the injuries sustained and the accident in question, I find that the trial court fell into error in entering judgment against the Appellant. The burden imposed by Sections 107 and 109 of the Evidence Act was not discharged.
18. On the fourth issue, the Respondent relied on Nancy Oseko v Board of Governors Maasai Girls High School [2011] eKLR, Anwar Ahmed v Hawa Isaack Abdi [2024] KEHC 7204 (KLR), Milgo Alias Henry Kiprono v Fridah Chemutai [2025] KEHC 45 (KLR) and Stanley Kipkoech Cheruiyot & Another v Anna Kemunto Onyiso [2024] eKLR in support of the award on damages. Those authorities dealt with assessment of damages after liability had been established. The Appellant on the other hand relied on Ademdesa & Another v Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR) and F.M (Minor suing through mother and next friend M.W.M) v J.N.N & J.D.K [2020] eKLR in urging the Court to interfere with the award made by the trial court. The Appellant also relied on Kemfro Africa Limited t/a Meru Express Service & Another v A.M. Lubia & Another [1982-88] 1 KAR 727 and Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR on the principles governing interference with awards of damages by an appellate court.
19. However, having found that liability was not proved, it becomes unnecessary to determine whether the award of damages made by the trial court was excessive or whether this Court ought to interfere with the same.
20. On costs, the appeal has succeeded and there is no reason to depart from the general rule that costs follow the event.
21. Consequently, I find that the appeal is meritorious and it is hereby allowed. The Judgment and Decree Keroka MCCC E188 of 2021 are hereby set aside and substituted with an order dismissing the Respondent’s suit with costs. The Appellant shall also have the costs of this appeal.