A. INTRODUCTION
1. This is a first appeal from the judgment of the Principal Magistrate's Court at Kimilili (Hon. W.K. Onkunya, PM) delivered on 17th January 2024 in Kimilili PMCC No. 18 of 2018, in which the trial Court found the Appellants 100% liable for a road traffic accident that occurred on 6th November 2017, and entered judgment for the Respondent in the sum of Kshs. 2,503,000/-, comprising general damages for pain, suffering and loss of amenities of Kshs. 2,500,000/-, special damages of Kshs. 3,000/-, together with costs and interest.
2. The Respondent, Shirleen Nasambu Nyongesa, sues through her father and next friend, Isaac Nyongesa Maombo. She was, at the material time, a girl of 9 years, of school-going age. The 1st Appellant, William Gamsa Obed, is sued as the registered/beneficial owner of motor vehicle registration number KBW 374M, a Toyota "Kangaroo" matatu. The 2nd Appellant, David Wafula Simiyu, is sued as the driver of the said motor vehicle at the material time.
B. THE PLEADINGS BEFORE THE TRIAL COURT
3. By a Plaint filed on 7th February 2018, the Respondent, through her father and next friend, pleaded that on or about 6th November 2017, while she was lawfully walking on the grass verge along the Kimilili–Bokoli Road at Bituyu area, the 2nd Appellant, driving the subject motor vehicle with the authority of the 1st Appellant, so negligently, carelessly and recklessly drove it that it veered off the road into the pedestrian lane and violently knocked her down, causing her severe injuries. The particulars of negligence pleaded included permitting a defective vehicle to be driven on the public road, failure to observe traffic rules, employing an unqualified driver, failure to service the vehicle, failure to brake, swerve, slow down or otherwise avoid the accident, and failure to install a speed governor. The Respondent pleaded reliance, in so far as necessary, on the doctrine of res ipsa loquitor, the Highway Code and the Traffic Act, and averred that the 2nd Appellant had been charged before the Kimilili Court in Traffic Case No. 229 of 2017 for causing death by dangerous and careless driving arising from the same accident. Special damages of Kshs. 32,510/- were particularised (comprising medical expenses, medical report fees, cost of copy of records, and taxi/transport costs), together with claims for general damages, future medical expenses, costs and interest.
4. The Appellants, through their then Advocates, initially failed to enter appearance or file a defence, resulting in an interlocutory (default) judgment being entered against them on 9th July 2018. That default judgment was, however, set aside by consent on 2nd October 2018, on terms that the Appellants pay the Respondent Kshs. 5,000/- as thrown-away costs and be granted 15 days within which to file a defence. The Appellants duly filed a Statement of Defence dated 25th July 2018, denying the occurrence of the accident as pleaded and, in the alternative and without prejudice, averring that if any accident occurred it was solely and/or substantially caused by the negligence of the minor Respondent herself, particularised as: failing to take adequate precaution for her own safety; walking on the road in a dangerous and careless manner; walking without due regard to other road users; failing to give way to traffic with the right of way; failing to keep to the pedestrian path; stepping onto the road when it was unsafe to do so; failing to observe traffic regulations; crossing the road negligently and carelessly; walking in the middle of the road; and pleading volenti non fit injuria. The Appellants denied that the doctrine of res ipsa loquitor applied, and put the Respondent to strict proof of the injuries, loss and damage claimed.
C. THE EVIDENCE BEFORE THE TRIAL COURT
5. The trial proceeded over several years and before several magistrates, owing to numerous adjournments, including for a second medical examination of the Respondent, which the Appellants sought and to whose costs they agreed to contribute. The Respondent's case comprised the evidence of four witnesses.
6. PW1, Elias Adeka, a Clinical Officer at Bungoma County Referral Hospital, produced the discharge summary (P.Exhibit 2) and the P3 Form (P.Exhibit 3). He testified that the Respondent was admitted on 6th November 2017 and discharged on 20th November 2017 with "multiple pelvic fractures" and per-vaginal bleeding, and that the degree of injury was classified as "grievous harm." Under cross-examination, he conceded that he had not personally treated the patient, did not have the patient file, that concussion was not noted in the discharge summary, and that no permanent incapacitation had been assessed.
7. PW2, Isaac Nyongesa Maombo, the Respondent's father and next friend, adopted his witness statement as his evidence-in-chief. He testified that the 2nd Appellant had been charged in Kimilili Traffic Case No. 229 of 2017 for causing death by dangerous driving; that the Respondent lost consciousness for approximately 14 hours; and that she had not fully healed. Under cross-examination, he confirmed that he had not witnessed the accident himself, that the Respondent had been in the company of her uncle, Andrew Wasike, who died at the scene, and that he arrived at the scene some 20 minutes after the accident by which time the Respondent had already been removed.
8. PW3, Dr. Mulianga Ekesa, a consultant surgeon, examined the Respondent approximately two months after the accident and produced his medical report (P.Exhibit 5(a)). He testified that the Respondent had sustained a concussion-head injury with loss of consciousness, a cut wound to the outer angle of the left eye, an unstable fracture of the superior and inferior pubic rami of the pelvis, a urethra-vaginal injury which had caused the vaginal bleeding, soft tissue injuries, and psychological trauma, and that she had "severe injuries that could interfere with her life later during childbirth." Under cross-examination, he conceded that the discharge summary did not capture the head injury, but maintained that a discharge summary "does not capture everything" and that, in his clinical assessment, the head injury was nonetheless present.
9. PW4, PC Norbert Wamukota of Kimilili Police Station, produced the Police Abstract (P.Exhibit 4). He testified that the abstract named both the Respondent and one Andrew Wasike (now deceased) as persons involved in the accident, that investigations were pending, that the driver of the vehicle was to be blamed according to the abstract, and that the driver had been charged with causing death by careless driving in Traffic Case No. 229 of 2017. He did not know whether that criminal case had been concluded.
10. The Appellants did not call the driver, the registered owner, or any other witness to give oral evidence on the question of liability. By consent of counsel, a second medical report dated 28th October 2021, prepared by Dr. Jenipher Kahuthu, was admitted as Defence Exhibit 1. It recorded a diagnosis of fractures of the superior and inferior pelvic rami and soft tissue injuries. No oral testimony was given in relation to that report, and it was not the subject of cross-examination. The Appellants thereafter closed their case without adducing any evidence directed at the question of liability.
D. THE TRIAL COURT'S JUDGMENT
11. The trial Court held that the Respondent had discharged both the legal and evidential burden of proof on liability, noting that the police officer (PW4) testified that the police abstract blamed the driver, that the driver had been charged with a traffic offence of causing death and careless driving, and that the Appellants had called no witness to controvert the Respondent's evidence on liability. The Court found the Appellants 100% liable.
12. On quantum, the trial Court identified the Respondent's injuries as concussion-head injury, soft tissue injuries, urethra-vaginal injury, fractured pelvis, and psychological trauma, relying on the evidence of Dr. Mulianga Ekesa (supported, as to the fracture and soft tissue component, by Dr. Kahuthu's second report). The Respondent's counsel had proposed Kshs. 3,000,000/- as general damages, relying on Sabina Nyakenya Mwanga v. Patrick Kigoro & Another [2015] eKLR, where the High Court at Embu awarded Kshs. 3,000,000/- for multiple fractures of the humerus, distal femur, patella, pelvis and distal radius/wrist, together with multiple soft tissue injuries. Citing the Court of Appeal's dictum in Odinga Jacktone Ouma v. Moureen Achieng Odera [2016] eKLR that "comparable injuries should attract comparable awards," the trial Court reasoned that the Respondent's injuries were less severe than those in Sabina Nyakenya Mwanga, and on that basis assessed general damages at Kshs. 2,500,000/-. Special damages of Kshs. 3,000/- were awarded, being the sum actually supported by admissible receipts (the taxi receipts tendered having been found, on the Respondent's own evidence, to bear no revenue stamps).
E. THE APPEAL
13. Aggrieved, the Appellants preferred this appeal by a Memorandum of Appeal dated 24th January 2024, raising, in substance, two comPlaints: first, that the trial Court erred in awarding 100% liability against the Appellants without regard to the evidence (Ground 1); and second — reformulated across four overlapping grounds (Grounds 2 to 5) — that the award of Kshs. 2,500,000/- as general damages was inordinately high, manifestly excessive, and made without regard to the principle that comparable injuries should attract comparable awards and to the authorities the Appellants had cited on quantum.
Submissions for the Appellants
14. The Appellants' written submissions, while framing the "main issue for determination" as "whether the trial Court misdirected itself on the question of liability," in fact advance no developed argument on liability; the substantive submissions are directed entirely at quantum. It is submitted that the discharge summary from Bungoma District Hospital records only "multiple pelvic fracture with per vaginal bleeding," and that the concussion, urethra-vaginal injury and psychological trauma referred to in Dr. Mulianga's report were not captured in that discharge summary and should not be treated as proved, relying on Masinde Muliro University & another v. Hillary Miheso Shiuma [2018] eKLR and Julie Akoth Onyango v. Daniel Otieno Owino & another [2020] eKLR for the proposition that a Court should confine itself to the injuries recorded in the contemporaneous treatment notes where later medical reports diverge from them. On that footing, it is submitted that only the pelvic fracture is proved, and that Kshs. 500,000/- would suffice, relying on Peter Gakere Ndiangui v. Sarah Wangari Maina [2021] eKLR and Mariqueta Nkoyai M'thitingi v. Shadrack Mwendwa & Banjamin Ibua [2020] eKLR, in each of which Kshs. 500,000/- was awarded or substituted for pelvic-fracture injuries said to be more severe than the Respondent's.
Submissions for the Respondent
15. The Respondent's counsel submits, first, that there is no principle of law under which a parent suing as next friend of a minor can be held vicariously liable for the minor's alleged negligence, that doctrine being confined to master-and-servant relationships, and that the minor herself remains the substantive party notwithstanding that her father lends his name to the proceedings, citing LMN (Minor suing through mother and next friend RMN) v. Kenya Ferry Services [2017] eKLR. Second, it is submitted that a child of 9 years cannot, as a matter of law and consistent with the trial Court's own approach, be found guilty of contributory negligence for a road accident of this nature. Third, on quantum, it is submitted that the injuries found by Dr. Mulianga Ekesa were never controverted by any contrary medical evidence — the Appellants having had the opportunity to have the Respondent examined by a doctor of their own choice and having done so only to the extent of producing Dr. Kahuthu's report, which did not contradict Dr. Mulianga's findings — and that uncontroverted expert medical evidence must be accepted, citing Benson Charles Ochieng & Another v. Susan Odhiambo Otieno [2013] eKLR and Dick Omondi Ndiewo t/a Ditech Engineering Service v. Cell Care Electronics [2015] eKLR for the proposition that expert evidence can only be displaced by evidence of another expert, not from the bar. The Respondent accordingly urges dismissal of the appeal with costs.
F. THE DUTY OF THE FIRST APPELLATE COURT
16. As on any first appeal, this Court is under a duty to re-evaluate, re-assess and reconsider the evidence on record afresh and to reach its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must make due allowance for that fact (Selle v. Associated Motor Boat Co. Ltd [1968] EA 123; Peters v. Sunday Post Ltd [1958] EA 424). This Court will not disturb a trial Court's findings of fact unless they are shown to be based on no evidence, or on a demonstrable misapprehension of the evidence, or the trial Court is shown to have acted on wrong principles (Mwanasokoni v. Kenya Bus Services Ltd [1985] eKLR). As regards quantum, an appellate Court will interfere only where the trial Court is shown to have taken into account an irrelevant matter, left out of account a relevant one, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate of the damage (Kemfro Africa Ltd t/a Meru Express Services v. A.M. Lubia and Olive Lubia [1982-88] 1 KAR 727; Bashir Ahmed Butt v. Uwais Ahmed Khan [1982-88] 1 KAR 1, [1981] KLR 349).
G. ANALYSIS AND DETERMINATION
(i) Liability
17. It is not disputed that the subject motor vehicle belonged to the 1st Appellant and was, at the material time, driven by the 2nd Appellant. The pleaded defence was not a denial of the driver-owner relationship, but a denial that any accident occurred as pleaded and, in the alternative, an assertion that the Respondent's own negligence solely or substantially caused it. On that pleaded case, the burden lay on the Appellants to adduce evidence capable of establishing the particulars of negligence they had pleaded against a nine-year-old child. They adduced none. The 2nd Appellant, who alone could have given a first-hand account of how the accident occurred, was never called. No other witness was called to explain the circumstances of the collision, to identify any fault on the Respondent's part, or otherwise to controvert the Respondent's case. The Appellants' evidence on liability, in short, is entirely absent from the record; their case rested, in the event, on the bare assertions of a pleading never converted into proof.
18. Against that vacuum stands the Respondent's evidence: that she was walking on the grass verge or pedestrian path when the Appellants' motor vehicle veered off the carriageway into the pedestrian lane and struck her. The Police Abstract, produced through PW4, which the officer confirmed "blamed" the driver; and the undisputed fact that the very same collision killed an adult who was accompanying the minor, giving rise to a criminal charge against the 2nd Appellant for causing death by dangerous or careless driving in Kimilili Traffic Case No. 229 of 2017. This Court is mindful that a pending or unresolved criminal charge is not, by itself, proof of civil liability — the standards of proof in the two jurisdictions differ, and the outcome of that criminal case was not established on this record. I place reliance on the cases of Mary Njeri Murigi v. Peter Macharia & Another [2016] eKLR and Nester Shikuri v. Ibrahim Okwiri Matanji [2020] eKLR. This Court does not treat the criminal charge as determinative, but only as context corroborating what is otherwise independently established: that a public service vehicle, for reasons never explained by its owner or driver, left its lane and struck a child walking on the verge, an occurrence which does not ordinarily happen without fault on the part of the person controlling the vehicle.
19. Nor can this Court accept, on this record, that the Respondent bears any share of blame. None of the particulars of negligence pleaded against her — that she failed to keep to the pedestrian path, stepped onto the road unsafely, crossed carelessly, or walked in the middle of the road — was supported by a shred of evidence. These were not put to any witness in cross-examination, nor proved through an eyewitness or the driver's own account. They remain bare, unproved allegations in a pleading. Even had some such fact been established, however, the law in this jurisdiction is emphatic that a child under the age of ten years cannot ordinarily be found guilty of contributory negligence, save upon clear proof that she had, at the material time, the capacity to appreciate the danger and to take precautions for her own safety as was decided in the Court of Appeal case of Bashir Ahmed Butt v. Uwais Ahmed Khan [1982-88] 1 KAR 1, [1981] KLR 349, per Madan JA and I am persuaded by the High Court case of Nkudate v. Touring & Sporting Cars Ltd [1978] KLR 199. The Respondent, a nine-year-old school-going child, falls squarely within that protected class, and no evidence whatsoever was tendered to displace the presumption in her favour. This Court also agrees with the Respondent's submission, and finds it correct in law, that her father's role as next friend for purposes of prosecuting this suit on her behalf cannot found any liability against him personally, noting that no particulars of negligence were pleaded or proved against him, and the doctrine of vicarious liability for negligence, properly understood, has no application to the relationship between a parent and a minor child in this context (LMN (Minor suing through mother and next friend RMN) v. Kenya Ferry Services [2017] eKLR).
20. For these reasons, this Court is independently satisfied, on a fresh evaluation of the whole of the evidence, that the finding of the trial Court that the Appellants are 100% liable for the accident is correct and must be upheld. Ground 1 of the appeal accordingly fails.
(ii) General damages
21. The injuries actually established on this record, on the uncontroverted evidence of Dr. Mulianga Ekesa, are: a concussion-type head injury with loss of consciousness; a cut wound to the outer angle of the left eye; an unstable fracture of the superior and inferior pubic rami of the pelvis; a urethra-vaginal injury which caused the recorded vaginal bleeding; associated soft tissue injuries; and psychological trauma. The treating specialist's opinion — that these injuries were severe and "could interfere with her life later during childbirth" — was never controverted. The Appellants, having had every opportunity to have the Respondent examined afresh by a doctor of their choosing, tendered a second report which did not contradict the pelvic fracture or soft tissue findings; it neither addressed nor disputed the concussion, the urethra-vaginal injury, or the psychological trauma, and its author was never called to be cross-examined on those points. Where a party elects not to controvert an opposing expert's evidence by evidence of an equivalent expert, that evidence must be accepted (Benson Charles Ochieng & Another v. Susan Odhiambo Otieno [2013] eKLR; Ali Mohamed Sunkar v. Diamond Trust Bank (K) Ltd, Misc. Application No. 427 of 2010). This Court is accordingly unable to accept the Appellants' invitation to confine the proved injuries to the pelvic fracture alone merely because the discharge summary — completed as an interim record on the day of admission — did not separately itemise every injury later confirmed on clinical examination; Dr. Mulianga's unrebutted evidence, that a discharge summary "does not capture everything," was never displaced.
22. That said, this Court considers that the trial Court's assessment of Kshs. 2,500,000/- cannot stand, not because the injuries were exaggerated, but because the comparator on which it was principally anchored — Sabina Nyakenya Mwanga v. Patrick Kigoro & Another [2015] eKLR — is not, on sober examination, a comparable case. The claimant there sustained five separate major fractures across four different anatomical regions (the humerus, the distal femur, the patella, the pelvis, and the distal radius/wrist) in addition to multiple soft tissue injuries — an altogether more extensive and catastrophic polytrauma than what the Respondent proved here. Having correctly identified that the Respondent's injuries were "less severe" than that comparator, the trial Court's method of simply discounting the comparator figure by an unexplained round sum of Kshs. 500,000/- did not yield a principled, independently anchored assessment; it merely produced a number tethered to a case with which this one bears little genuine resemblance. That approach falls into the very error the trial Court's own cited authority — Odinga Jacktone Ouma v. Moureen Achieng Odera [2016] eKLR — was designed to guard against: comparable injuries should attract comparable awards, and an award anchored to a materially more severe case, discounted arbitrarily, is not a comparable award.
23. This Court has considered the authorities properly falling within the range of comparable injury. In Peter Gakere Ndiangui v. Sarah Wangari Maina [2021] eKLR, the High Court reduced an award from Kshs. 1,200,000/- to Kshs. 500,000/- for a claimant who sustained a pelvic fracture with blunt injuries to the chest, head, buttocks and thigh, a head concussion and lung bruising — injuries closely resembling the Respondent's own — but who, unlike the Respondent, had a confirmed permanent incapacity of 15% and remained on crutches at the time of examination. In Mariqueta Nkoyai M'thiringi v. Shadrack Mwendwa & Another [2020] eKLR, the High Court upheld an award of Kshs. 500,000/- for pelvic fracture accompanied by pelvic bruising, dislocation of the hand, a deep cut wound with severed tendons, and a sprained ankle and cut foot, without any confirmed incapacity being disclosed. In George Njenga & Another v. Daniel Wachira Mwangi, Nyeri HCCA No. 1 of 2015 [2017] eKLR, an award of Kshs. 800,000/- was upheld on appeal for a claimant with a pelvic fracture accompanied by an unstable knee joint, an unstable ankle joint, soft tissue trunk injuries and a leg laceration.
24. The Respondent's case sits between these authorities, sharing features with each but matching none precisely. Unlike Peter Gakere Ndiangui, no permanent incapacity was assessed and there is no evidence that the Respondent required crutches or other mobility aids by the time of examination; that pulls toward a more modest figure. Unlike Mariqueta Nkoyai M'thiringi and George Njenga & Another, the Respondent did not sustain injury to any additional joint (knee, ankle or hand); that too pulls toward a more modest figure than the 800,000 upheld in the latter case. On the other hand, none of those three comparators involved a urethra-vaginal injury of the kind Dr. Mulianga described, nor the specific and weighty medical opinion — never challenged — that the injury carries a risk to the Respondent's capacity to bear children later in life; nor did any of them concern a child of tender years, a circumstance to which this Court considers real weight ought to be given, both because the consequences of a reproductive-health injury of this kind may only fully manifest many years into the future, and because psychological trauma sustained by a nine-year-old child in so violent an event is not to be treated as a mere formality. These are aggravating features not present in the Appellants' own cited comparators, and this Court is not persuaded that Kshs. 500,000/- — which the Appellants urge, and which in each of their own authorities was tied to a confirmed measurable disability or a materially different, non-visceral injury profile — adequately reflects them.
25. Weighing the whole of this evidence, and mindful that no two personal injury cases are ever perfectly comparable, this Court considers that a fair and principled award, properly anchored to the range disclosed by the comparable authorities and reflecting the aggravating features particular to this Respondent, is Kshs. 750,000/- as general damages for pain, suffering and loss of amenities. This sits below the Kshs. 800,000/- awarded in George Njenga & Another (an adult claimant with two additional joint injuries but without a comparable visceral/reproductive injury or the vulnerabilities of a child claimant), and above the Kshs. 500,000/- awarded in Peter Gakere Ndiangui and Mariqueta Nkoyai M'thiringi (adult claimants, one with a confirmed measurable incapacity that the Respondent does not have, the other with additional orthopaedic injuries of a different character). It is very substantially below the Kshs. 2,500,000/- awarded by the trial Court, which this Court has found to rest on an improperly anchored comparison. Ground 2 (and the overlapping Grounds 3, 4 and 5) of the appeal accordingly succeed to this extent: the award of general damages is set aside and substituted with an award of Kshs. 750,000/-.
(iii) Special damages
26. No ground of appeal challenges the trial Court's award of Kshs. 3,000/- as special damages, that being the sum the trial Court found strictly proved by admissible receipts, after properly excluding the taxi receipts which the Respondent's own witness conceded bore no revenue stamps. This Court finds no basis to interfere with that finding, and it is upheld.
H. DISPOSITION
27. For the foregoing reasons, this Court finds that Ground 1 of the appeal (liability) fails, and that Grounds 2 to 5 (quantum) succeed in part. The judgment of the trial Court is varied accordingly.
28. The final orders of this Court are as follows:
(a) The appeal succeeds in part.
(b) The finding of the trial Court that the Appellants are 100% liable for the accident of 6th November 2017 is upheld.
(c) The award of general damages for pain, suffering and loss of amenities is set aside and substituted with an award of Kshs. 750,000/-.
(d) The award of special damages of Kshs. 3,000/- is upheld.
(e) The resulting decretal sum is Kshs. 753,000/-, together with interest thereon at Court rates from the date of the trial Court's judgment until payment in full, in accordance with the decree of the trial Court.
(f) Each party shall bear its own costs of this appeal.
It is so ordered.
In the presence of:
N/A for the Appellants
Mr.Juma for the Respondent
Irene Chelang'at – Court Assistant
1. This is a first appeal from the judgment of the Principal Magistrate's Court at Kimilili (Hon. W.K. Onkunya, PM) delivered on 17th January 2024 in Kimilili PMCC No. 18 of 2018, in which the trial Court found the Appellants 100% liable for a road traffic accident that occurred on 6th November 2017, and entered judgment for the Respondent in the sum of Kshs. 2,503,000/-, comprising general damages for pain, suffering and loss of amenities of Kshs. 2,500,000/-, special damages of Kshs. 3,000/-, together with costs and interest.
2. The Respondent, Shirleen Nasambu Nyongesa, sues through her father and next friend, Isaac Nyongesa Maombo. She was, at the material time, a girl of 9 years, of school-going age. The 1st Appellant, William Gamsa Obed, is sued as the registered/beneficial owner of motor vehicle registration number KBW 374M, a Toyota "Kangaroo" matatu. The 2nd Appellant, David Wafula Simiyu, is sued as the driver of the said motor vehicle at the material time.
B. THE PLEADINGS BEFORE THE TRIAL COURT
3. By a Plaint filed on 7th February 2018, the Respondent, through her father and next friend, pleaded that on or about 6th November 2017, while she was lawfully walking on the grass verge along the Kimilili–Bokoli Road at Bituyu area, the 2nd Appellant, driving the subject motor vehicle with the authority of the 1st Appellant, so negligently, carelessly and recklessly drove it that it veered off the road into the pedestrian lane and violently knocked her down, causing her severe injuries. The particulars of negligence pleaded included permitting a defective vehicle to be driven on the public road, failure to observe traffic rules, employing an unqualified driver, failure to service the vehicle, failure to brake, swerve, slow down or otherwise avoid the accident, and failure to install a speed governor. The Respondent pleaded reliance, in so far as necessary, on the doctrine of res ipsa loquitor, the Highway Code and the Traffic Act, and averred that the 2nd Appellant had been charged before the Kimilili Court in Traffic Case No. 229 of 2017 for causing death by dangerous and careless driving arising from the same accident. Special damages of Kshs. 32,510/- were particularised (comprising medical expenses, medical report fees, cost of copy of records, and taxi/transport costs), together with claims for general damages, future medical expenses, costs and interest.
4. The Appellants, through their then Advocates, initially failed to enter appearance or file a defence, resulting in an interlocutory (default) judgment being entered against them on 9th July 2018. That default judgment was, however, set aside by consent on 2nd October 2018, on terms that the Appellants pay the Respondent Kshs. 5,000/- as thrown-away costs and be granted 15 days within which to file a defence. The Appellants duly filed a Statement of Defence dated 25th July 2018, denying the occurrence of the accident as pleaded and, in the alternative and without prejudice, averring that if any accident occurred it was solely and/or substantially caused by the negligence of the minor Respondent herself, particularised as: failing to take adequate precaution for her own safety; walking on the road in a dangerous and careless manner; walking without due regard to other road users; failing to give way to traffic with the right of way; failing to keep to the pedestrian path; stepping onto the road when it was unsafe to do so; failing to observe traffic regulations; crossing the road negligently and carelessly; walking in the middle of the road; and pleading volenti non fit injuria. The Appellants denied that the doctrine of res ipsa loquitor applied, and put the Respondent to strict proof of the injuries, loss and damage claimed.
C. THE EVIDENCE BEFORE THE TRIAL COURT
5. The trial proceeded over several years and before several magistrates, owing to numerous adjournments, including for a second medical examination of the Respondent, which the Appellants sought and to whose costs they agreed to contribute. The Respondent's case comprised the evidence of four witnesses.
6. PW1, Elias Adeka, a Clinical Officer at Bungoma County Referral Hospital, produced the discharge summary (P.Exhibit 2) and the P3 Form (P.Exhibit 3). He testified that the Respondent was admitted on 6th November 2017 and discharged on 20th November 2017 with "multiple pelvic fractures" and per-vaginal bleeding, and that the degree of injury was classified as "grievous harm." Under cross-examination, he conceded that he had not personally treated the patient, did not have the patient file, that concussion was not noted in the discharge summary, and that no permanent incapacitation had been assessed.
7. PW2, Isaac Nyongesa Maombo, the Respondent's father and next friend, adopted his witness statement as his evidence-in-chief. He testified that the 2nd Appellant had been charged in Kimilili Traffic Case No. 229 of 2017 for causing death by dangerous driving; that the Respondent lost consciousness for approximately 14 hours; and that she had not fully healed. Under cross-examination, he confirmed that he had not witnessed the accident himself, that the Respondent had been in the company of her uncle, Andrew Wasike, who died at the scene, and that he arrived at the scene some 20 minutes after the accident by which time the Respondent had already been removed.
8. PW3, Dr. Mulianga Ekesa, a consultant surgeon, examined the Respondent approximately two months after the accident and produced his medical report (P.Exhibit 5(a)). He testified that the Respondent had sustained a concussion-head injury with loss of consciousness, a cut wound to the outer angle of the left eye, an unstable fracture of the superior and inferior pubic rami of the pelvis, a urethra-vaginal injury which had caused the vaginal bleeding, soft tissue injuries, and psychological trauma, and that she had "severe injuries that could interfere with her life later during childbirth." Under cross-examination, he conceded that the discharge summary did not capture the head injury, but maintained that a discharge summary "does not capture everything" and that, in his clinical assessment, the head injury was nonetheless present.
9. PW4, PC Norbert Wamukota of Kimilili Police Station, produced the Police Abstract (P.Exhibit 4). He testified that the abstract named both the Respondent and one Andrew Wasike (now deceased) as persons involved in the accident, that investigations were pending, that the driver of the vehicle was to be blamed according to the abstract, and that the driver had been charged with causing death by careless driving in Traffic Case No. 229 of 2017. He did not know whether that criminal case had been concluded.
10. The Appellants did not call the driver, the registered owner, or any other witness to give oral evidence on the question of liability. By consent of counsel, a second medical report dated 28th October 2021, prepared by Dr. Jenipher Kahuthu, was admitted as Defence Exhibit 1. It recorded a diagnosis of fractures of the superior and inferior pelvic rami and soft tissue injuries. No oral testimony was given in relation to that report, and it was not the subject of cross-examination. The Appellants thereafter closed their case without adducing any evidence directed at the question of liability.
D. THE TRIAL COURT'S JUDGMENT
11. The trial Court held that the Respondent had discharged both the legal and evidential burden of proof on liability, noting that the police officer (PW4) testified that the police abstract blamed the driver, that the driver had been charged with a traffic offence of causing death and careless driving, and that the Appellants had called no witness to controvert the Respondent's evidence on liability. The Court found the Appellants 100% liable.
12. On quantum, the trial Court identified the Respondent's injuries as concussion-head injury, soft tissue injuries, urethra-vaginal injury, fractured pelvis, and psychological trauma, relying on the evidence of Dr. Mulianga Ekesa (supported, as to the fracture and soft tissue component, by Dr. Kahuthu's second report). The Respondent's counsel had proposed Kshs. 3,000,000/- as general damages, relying on Sabina Nyakenya Mwanga v. Patrick Kigoro & Another [2015] eKLR, where the High Court at Embu awarded Kshs. 3,000,000/- for multiple fractures of the humerus, distal femur, patella, pelvis and distal radius/wrist, together with multiple soft tissue injuries. Citing the Court of Appeal's dictum in Odinga Jacktone Ouma v. Moureen Achieng Odera [2016] eKLR that "comparable injuries should attract comparable awards," the trial Court reasoned that the Respondent's injuries were less severe than those in Sabina Nyakenya Mwanga, and on that basis assessed general damages at Kshs. 2,500,000/-. Special damages of Kshs. 3,000/- were awarded, being the sum actually supported by admissible receipts (the taxi receipts tendered having been found, on the Respondent's own evidence, to bear no revenue stamps).
E. THE APPEAL
13. Aggrieved, the Appellants preferred this appeal by a Memorandum of Appeal dated 24th January 2024, raising, in substance, two comPlaints: first, that the trial Court erred in awarding 100% liability against the Appellants without regard to the evidence (Ground 1); and second — reformulated across four overlapping grounds (Grounds 2 to 5) — that the award of Kshs. 2,500,000/- as general damages was inordinately high, manifestly excessive, and made without regard to the principle that comparable injuries should attract comparable awards and to the authorities the Appellants had cited on quantum.
Submissions for the Appellants
14. The Appellants' written submissions, while framing the "main issue for determination" as "whether the trial Court misdirected itself on the question of liability," in fact advance no developed argument on liability; the substantive submissions are directed entirely at quantum. It is submitted that the discharge summary from Bungoma District Hospital records only "multiple pelvic fracture with per vaginal bleeding," and that the concussion, urethra-vaginal injury and psychological trauma referred to in Dr. Mulianga's report were not captured in that discharge summary and should not be treated as proved, relying on Masinde Muliro University & another v. Hillary Miheso Shiuma [2018] eKLR and Julie Akoth Onyango v. Daniel Otieno Owino & another [2020] eKLR for the proposition that a Court should confine itself to the injuries recorded in the contemporaneous treatment notes where later medical reports diverge from them. On that footing, it is submitted that only the pelvic fracture is proved, and that Kshs. 500,000/- would suffice, relying on Peter Gakere Ndiangui v. Sarah Wangari Maina [2021] eKLR and Mariqueta Nkoyai M'thitingi v. Shadrack Mwendwa & Banjamin Ibua [2020] eKLR, in each of which Kshs. 500,000/- was awarded or substituted for pelvic-fracture injuries said to be more severe than the Respondent's.
Submissions for the Respondent
15. The Respondent's counsel submits, first, that there is no principle of law under which a parent suing as next friend of a minor can be held vicariously liable for the minor's alleged negligence, that doctrine being confined to master-and-servant relationships, and that the minor herself remains the substantive party notwithstanding that her father lends his name to the proceedings, citing LMN (Minor suing through mother and next friend RMN) v. Kenya Ferry Services [2017] eKLR. Second, it is submitted that a child of 9 years cannot, as a matter of law and consistent with the trial Court's own approach, be found guilty of contributory negligence for a road accident of this nature. Third, on quantum, it is submitted that the injuries found by Dr. Mulianga Ekesa were never controverted by any contrary medical evidence — the Appellants having had the opportunity to have the Respondent examined by a doctor of their own choice and having done so only to the extent of producing Dr. Kahuthu's report, which did not contradict Dr. Mulianga's findings — and that uncontroverted expert medical evidence must be accepted, citing Benson Charles Ochieng & Another v. Susan Odhiambo Otieno [2013] eKLR and Dick Omondi Ndiewo t/a Ditech Engineering Service v. Cell Care Electronics [2015] eKLR for the proposition that expert evidence can only be displaced by evidence of another expert, not from the bar. The Respondent accordingly urges dismissal of the appeal with costs.
F. THE DUTY OF THE FIRST APPELLATE COURT
16. As on any first appeal, this Court is under a duty to re-evaluate, re-assess and reconsider the evidence on record afresh and to reach its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must make due allowance for that fact (Selle v. Associated Motor Boat Co. Ltd [1968] EA 123; Peters v. Sunday Post Ltd [1958] EA 424). This Court will not disturb a trial Court's findings of fact unless they are shown to be based on no evidence, or on a demonstrable misapprehension of the evidence, or the trial Court is shown to have acted on wrong principles (Mwanasokoni v. Kenya Bus Services Ltd [1985] eKLR). As regards quantum, an appellate Court will interfere only where the trial Court is shown to have taken into account an irrelevant matter, left out of account a relevant one, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate of the damage (Kemfro Africa Ltd t/a Meru Express Services v. A.M. Lubia and Olive Lubia [1982-88] 1 KAR 727; Bashir Ahmed Butt v. Uwais Ahmed Khan [1982-88] 1 KAR 1, [1981] KLR 349).
G. ANALYSIS AND DETERMINATION
(i) Liability
17. It is not disputed that the subject motor vehicle belonged to the 1st Appellant and was, at the material time, driven by the 2nd Appellant. The pleaded defence was not a denial of the driver-owner relationship, but a denial that any accident occurred as pleaded and, in the alternative, an assertion that the Respondent's own negligence solely or substantially caused it. On that pleaded case, the burden lay on the Appellants to adduce evidence capable of establishing the particulars of negligence they had pleaded against a nine-year-old child. They adduced none. The 2nd Appellant, who alone could have given a first-hand account of how the accident occurred, was never called. No other witness was called to explain the circumstances of the collision, to identify any fault on the Respondent's part, or otherwise to controvert the Respondent's case. The Appellants' evidence on liability, in short, is entirely absent from the record; their case rested, in the event, on the bare assertions of a pleading never converted into proof.
18. Against that vacuum stands the Respondent's evidence: that she was walking on the grass verge or pedestrian path when the Appellants' motor vehicle veered off the carriageway into the pedestrian lane and struck her. The Police Abstract, produced through PW4, which the officer confirmed "blamed" the driver; and the undisputed fact that the very same collision killed an adult who was accompanying the minor, giving rise to a criminal charge against the 2nd Appellant for causing death by dangerous or careless driving in Kimilili Traffic Case No. 229 of 2017. This Court is mindful that a pending or unresolved criminal charge is not, by itself, proof of civil liability — the standards of proof in the two jurisdictions differ, and the outcome of that criminal case was not established on this record. I place reliance on the cases of Mary Njeri Murigi v. Peter Macharia & Another [2016] eKLR and Nester Shikuri v. Ibrahim Okwiri Matanji [2020] eKLR. This Court does not treat the criminal charge as determinative, but only as context corroborating what is otherwise independently established: that a public service vehicle, for reasons never explained by its owner or driver, left its lane and struck a child walking on the verge, an occurrence which does not ordinarily happen without fault on the part of the person controlling the vehicle.
19. Nor can this Court accept, on this record, that the Respondent bears any share of blame. None of the particulars of negligence pleaded against her — that she failed to keep to the pedestrian path, stepped onto the road unsafely, crossed carelessly, or walked in the middle of the road — was supported by a shred of evidence. These were not put to any witness in cross-examination, nor proved through an eyewitness or the driver's own account. They remain bare, unproved allegations in a pleading. Even had some such fact been established, however, the law in this jurisdiction is emphatic that a child under the age of ten years cannot ordinarily be found guilty of contributory negligence, save upon clear proof that she had, at the material time, the capacity to appreciate the danger and to take precautions for her own safety as was decided in the Court of Appeal case of Bashir Ahmed Butt v. Uwais Ahmed Khan [1982-88] 1 KAR 1, [1981] KLR 349, per Madan JA and I am persuaded by the High Court case of Nkudate v. Touring & Sporting Cars Ltd [1978] KLR 199. The Respondent, a nine-year-old school-going child, falls squarely within that protected class, and no evidence whatsoever was tendered to displace the presumption in her favour. This Court also agrees with the Respondent's submission, and finds it correct in law, that her father's role as next friend for purposes of prosecuting this suit on her behalf cannot found any liability against him personally, noting that no particulars of negligence were pleaded or proved against him, and the doctrine of vicarious liability for negligence, properly understood, has no application to the relationship between a parent and a minor child in this context (LMN (Minor suing through mother and next friend RMN) v. Kenya Ferry Services [2017] eKLR).
20. For these reasons, this Court is independently satisfied, on a fresh evaluation of the whole of the evidence, that the finding of the trial Court that the Appellants are 100% liable for the accident is correct and must be upheld. Ground 1 of the appeal accordingly fails.
(ii) General damages
21. The injuries actually established on this record, on the uncontroverted evidence of Dr. Mulianga Ekesa, are: a concussion-type head injury with loss of consciousness; a cut wound to the outer angle of the left eye; an unstable fracture of the superior and inferior pubic rami of the pelvis; a urethra-vaginal injury which caused the recorded vaginal bleeding; associated soft tissue injuries; and psychological trauma. The treating specialist's opinion — that these injuries were severe and "could interfere with her life later during childbirth" — was never controverted. The Appellants, having had every opportunity to have the Respondent examined afresh by a doctor of their choosing, tendered a second report which did not contradict the pelvic fracture or soft tissue findings; it neither addressed nor disputed the concussion, the urethra-vaginal injury, or the psychological trauma, and its author was never called to be cross-examined on those points. Where a party elects not to controvert an opposing expert's evidence by evidence of an equivalent expert, that evidence must be accepted (Benson Charles Ochieng & Another v. Susan Odhiambo Otieno [2013] eKLR; Ali Mohamed Sunkar v. Diamond Trust Bank (K) Ltd, Misc. Application No. 427 of 2010). This Court is accordingly unable to accept the Appellants' invitation to confine the proved injuries to the pelvic fracture alone merely because the discharge summary — completed as an interim record on the day of admission — did not separately itemise every injury later confirmed on clinical examination; Dr. Mulianga's unrebutted evidence, that a discharge summary "does not capture everything," was never displaced.
22. That said, this Court considers that the trial Court's assessment of Kshs. 2,500,000/- cannot stand, not because the injuries were exaggerated, but because the comparator on which it was principally anchored — Sabina Nyakenya Mwanga v. Patrick Kigoro & Another [2015] eKLR — is not, on sober examination, a comparable case. The claimant there sustained five separate major fractures across four different anatomical regions (the humerus, the distal femur, the patella, the pelvis, and the distal radius/wrist) in addition to multiple soft tissue injuries — an altogether more extensive and catastrophic polytrauma than what the Respondent proved here. Having correctly identified that the Respondent's injuries were "less severe" than that comparator, the trial Court's method of simply discounting the comparator figure by an unexplained round sum of Kshs. 500,000/- did not yield a principled, independently anchored assessment; it merely produced a number tethered to a case with which this one bears little genuine resemblance. That approach falls into the very error the trial Court's own cited authority — Odinga Jacktone Ouma v. Moureen Achieng Odera [2016] eKLR — was designed to guard against: comparable injuries should attract comparable awards, and an award anchored to a materially more severe case, discounted arbitrarily, is not a comparable award.
23. This Court has considered the authorities properly falling within the range of comparable injury. In Peter Gakere Ndiangui v. Sarah Wangari Maina [2021] eKLR, the High Court reduced an award from Kshs. 1,200,000/- to Kshs. 500,000/- for a claimant who sustained a pelvic fracture with blunt injuries to the chest, head, buttocks and thigh, a head concussion and lung bruising — injuries closely resembling the Respondent's own — but who, unlike the Respondent, had a confirmed permanent incapacity of 15% and remained on crutches at the time of examination. In Mariqueta Nkoyai M'thiringi v. Shadrack Mwendwa & Another [2020] eKLR, the High Court upheld an award of Kshs. 500,000/- for pelvic fracture accompanied by pelvic bruising, dislocation of the hand, a deep cut wound with severed tendons, and a sprained ankle and cut foot, without any confirmed incapacity being disclosed. In George Njenga & Another v. Daniel Wachira Mwangi, Nyeri HCCA No. 1 of 2015 [2017] eKLR, an award of Kshs. 800,000/- was upheld on appeal for a claimant with a pelvic fracture accompanied by an unstable knee joint, an unstable ankle joint, soft tissue trunk injuries and a leg laceration.
24. The Respondent's case sits between these authorities, sharing features with each but matching none precisely. Unlike Peter Gakere Ndiangui, no permanent incapacity was assessed and there is no evidence that the Respondent required crutches or other mobility aids by the time of examination; that pulls toward a more modest figure. Unlike Mariqueta Nkoyai M'thiringi and George Njenga & Another, the Respondent did not sustain injury to any additional joint (knee, ankle or hand); that too pulls toward a more modest figure than the 800,000 upheld in the latter case. On the other hand, none of those three comparators involved a urethra-vaginal injury of the kind Dr. Mulianga described, nor the specific and weighty medical opinion — never challenged — that the injury carries a risk to the Respondent's capacity to bear children later in life; nor did any of them concern a child of tender years, a circumstance to which this Court considers real weight ought to be given, both because the consequences of a reproductive-health injury of this kind may only fully manifest many years into the future, and because psychological trauma sustained by a nine-year-old child in so violent an event is not to be treated as a mere formality. These are aggravating features not present in the Appellants' own cited comparators, and this Court is not persuaded that Kshs. 500,000/- — which the Appellants urge, and which in each of their own authorities was tied to a confirmed measurable disability or a materially different, non-visceral injury profile — adequately reflects them.
25. Weighing the whole of this evidence, and mindful that no two personal injury cases are ever perfectly comparable, this Court considers that a fair and principled award, properly anchored to the range disclosed by the comparable authorities and reflecting the aggravating features particular to this Respondent, is Kshs. 750,000/- as general damages for pain, suffering and loss of amenities. This sits below the Kshs. 800,000/- awarded in George Njenga & Another (an adult claimant with two additional joint injuries but without a comparable visceral/reproductive injury or the vulnerabilities of a child claimant), and above the Kshs. 500,000/- awarded in Peter Gakere Ndiangui and Mariqueta Nkoyai M'thiringi (adult claimants, one with a confirmed measurable incapacity that the Respondent does not have, the other with additional orthopaedic injuries of a different character). It is very substantially below the Kshs. 2,500,000/- awarded by the trial Court, which this Court has found to rest on an improperly anchored comparison. Ground 2 (and the overlapping Grounds 3, 4 and 5) of the appeal accordingly succeed to this extent: the award of general damages is set aside and substituted with an award of Kshs. 750,000/-.
(iii) Special damages
26. No ground of appeal challenges the trial Court's award of Kshs. 3,000/- as special damages, that being the sum the trial Court found strictly proved by admissible receipts, after properly excluding the taxi receipts which the Respondent's own witness conceded bore no revenue stamps. This Court finds no basis to interfere with that finding, and it is upheld.
H. DISPOSITION
27. For the foregoing reasons, this Court finds that Ground 1 of the appeal (liability) fails, and that Grounds 2 to 5 (quantum) succeed in part. The judgment of the trial Court is varied accordingly.
28. The final orders of this Court are as follows:
(a) The appeal succeeds in part.
(b) The finding of the trial Court that the Appellants are 100% liable for the accident of 6th November 2017 is upheld.
(c) The award of general damages for pain, suffering and loss of amenities is set aside and substituted with an award of Kshs. 750,000/-.
(d) The award of special damages of Kshs. 3,000/- is upheld.
(e) The resulting decretal sum is Kshs. 753,000/-, together with interest thereon at Court rates from the date of the trial Court's judgment until payment in full, in accordance with the decree of the trial Court.
(f) Each party shall bear its own costs of this appeal.
It is so ordered.
In the presence of:
N/A for the Appellants
Mr.Juma for the Respondent
Irene Chelang'at – Court Assistant