1. This Appeal is against a finding on both quantum and liability as awarded to the Respondent in Eldoret Chief Magistrate’s Civil Case No. 381 of 2022 as compensation for injuries sustained as a result of a road accident. In the trial Court, the Appellant was the 1st Defendant while the 1st Respondent was the Plaintiff and the 2nd Respondent was the 2nd Defendant. The Appellant now seeks a reconsideration of both on the grounds that the same was inordinately high and excessive. The claim was brought by way of a Plaint filed on 18/04/2022 through Messrs G. K Okara & Co. Advocates wherein the Respondent sued the Appellant seeking general as well as Special damages at pleaded at Kshs 12,435/- together with costs of the suit and interest at court rates.
2. The Respondent pleaded that the Appellant was, at all material times, the owner of the motor vehicle registration number KDG 443R and that on 26/03/2022, the 1st Respondent was lawfully travelling on his motor cycle registration no. KMGA 954M along the Eldoret – Iten road when at Kipchoge Stadium area, the Appellant’s vehicle was so negligently, carelessly and/or recklessly driven, managed and/or controlled that it lost control and hit the Respondent, occasioning him severe bodily injuries.
3. The Appellant filed her Defence on 19/03/2022 through Messrs Onyinkwa & Co Advocates denying the claim and the particulars of negligence alleged. After close of the pleadings, the suit proceeded to trial. The Respondent called 3 witness whereas the Appellant testified by herself and did not call any witnesses.
4. PW1 was Dr Paul Rono of Moi Teaching and Referral Hospital. In his evidence-in-chief, he produced the documents from the said hospital as exhibits being the Patient Card as PExh1, three Prescription Forms as PExh2, Radiology Form as PExh3 and Receipts as PExh4. In cross examination, he stated that he saw the respondent on 27/03/2022 but he was not the treating doctor. Further, that the radiology request form showed that the respondent had a head injury.
5. PW2 was PC Situ Mohammed of Central police station. He testified that the accident occurred along the Eldoret-Iten road involving motor vehicle registration no, KDG 443K Subaru Impresser driven by the appellant and the motor cycle KMGA 954A that was being ridden by the 1st respondent who was heading towards Eldoret town on 27/03/2022 as the motor vehicle was negotiating a corner. That the accident occurred on the rider’s lane to wit the right side facing Iten. That the rider sustained a fracture of the left hand and forehead and was taken to Moi Teaching and Referral hospital.
6. In cross examination, the witnessed confirmed that he was not the investigating officer and was also not present at the scene of the accident. That his evidence was limited to the production of the OB extract and the Police Abstract. That he did not have the sketch map to show the point of impact and he also did not look at the defendants’ motor vehicle. He stated that it is the OB extract that he was relying on that indicated that the appellant and the 1st respondent were driving in opposite directions and the accident occurred on the right side of the road, and that the rider tried to keep to his rear left.
7. PW3 was the 1st respondent. He adopted his witness statement dated 28th April 2022 as his evidence in chief. He stated that on the material date he was traveling from Iten to Eldoret riding on motor cycle registration number KMGA 954M when he was involved in an accident. He stated that the motor vehicle approached from the opposite direction and he was on the right hand side. The driver was overtaking, found him on the right side and knocked him down. He injured his head, left hand and foot and he had bruises. He was treated at Moi teaching referral hospital and reported the incident to Eldoret Police Station. he produced the medical documents as exhibits and stated that he blamed the driver for the accident.
8. In cross examination, he testified that it was rainy and time was at 11.40 pm. That he was properly dressed and that if he had no helmet he would have died. He denied that over speeding or that he was overtaking and stated that he was very careful. The Plaintiff’ then closed his case.
9. The Appellant testified as DW1 and stated that on 26/03/2022 she was driving from Eldoret to Iten and while negotiating a corner, there was a motorcycle that was speeding and she tried to give way but that the further she went, it still pushed her it pushed her and she even bucked. That the motor cycle was even hooting. That eventually it knocked her. She stated that she was not overtaking because the bend was so sharp one could not overtake. She stated that she was on the extreme left and blamed the rider for causing the accident as he was the one who encroached on her lane.
10. In cross examination she stated that she was alone in the car and that she was not told that she was the one to blame. She stated that it was drizzling and that the incident occurred around midnight.
In its Judgement delivered on 27/09/2023, the trial Magistrate entered Judgment in favour of the 1st Respondent and against the appellant as follows;
(i) Liability at 100%
(ii) General Damages of Kshs 500,000/-
(iii) Special Damages of Kshs 10,235/-
(iv) Costs of the suit and interest at court rates.
11. Dissatisfied with the Judgment, the Appellant filed this Appeal on 27/10/2023. In the Memorandum of Appeal, the following grounds were listed;
i) That the learned magistrate erred in law and fact in holding the appellant 100% liable without taking into consideration the evidence adduced.
ii) That the learned magistrate erred in law and fact in failing to properly analyse the evidence adduced by the appellant thereby arriving at a wholly erroneous decision on the issue of liability.
iii) That without prejudice to the foregoing, the learned magistrate erred in law and fact by failing to apportion liability on the part of the respondent and in particular the 1st respondent in view of the evidence on record.
iv) The Learned magistrate erred in law and in fact in adopting the wrong principles in assessing the damages payable to the 1st respondent thereby awarding excessive damages in view of the injuries sustained by the respondent.
v) The Learned magistrate erred in law and in fact in failing to consider the evidence on record and relevant authorities with comparable injuries to the ones sustained by the 1st respondent thereby awarding excessive damages.
vi) The Learned magistrate erred in law and in fact by failing to consider the submissions by the appellant on both liability and quantum thereby arriving at an erroneous decision.
Hearing of the Appeal
12. The Appeal was canvassed by way of written Submissions. Pursuant thereto, the Appellant filed submissions on 15/04/2024 through the firm of Messrs Onyinkwa & Co Advocates while the Respondent filed submissions dated 28/01/2025 through the firm of Messrs G.K Okara & Co. Advocates.
Appellants Submissions
13. Learned Counsel for the appellant submitted that the trial magistrate erred in finding the appellant 100% liable for the accident because neither the testimonies nor the evidence adduced during the trial pointed towards the blame worthiness of the appellant. He cited Section 107 of the Evidence Act on burden of proof and urged that from the evidence adduced in court, what was clear that both the appellant’s motor vehicle and the 1st respondent’s motorcycle were in motion. Further, that it was also clear from the evidence adduced by the parties that the appellants motor vehicle and the 1st respondent’s motorcycle were moving in opposite directions. So, for there to have been a collision one must have moved to the other lane under normal circumstances.
14. Counsel contrasted the testimonies of the witnesses given in court and urged that the evidence of PW2, being the police abstract, only proved that an accident was reported as having occurred between the appellant’s motor vehicle and the 1st respondents motor cycle. Counsel urged that the same was not in dispute. With regard to the circumstances surrounding the accident, he stated that the testimony was bereft of any substance and the trial magistrate appreciated the same in her judgement when she stated
“I am alive to the fact that the police who testified did not attend to the scene and I may not say much about her evidence. I feel from the facts the investigations officer was not well versed with the facts"
15. Counsel questioned how the trial court, having observed as aforesaid, arrived at a determination that the appellant was 100% liable. Both parties gave conflicting testimonies blaming each other and the independent witness did not offer any information or evidence to help the court paint a picture of the scene of the accident. Counsel pointed out that according to the trial magistrate, the 1st respondent was hit on his lane and questioned what informed this. Counsel urged that the appellant indicated that the accident actually occurred on her lane and posed the question as to why the trial magistrate disregarded her testimony. He additionally questioned the evidence that demonstrated the where the point of impact was and submitted that there was none. Counsel submitted that there was no evidence placed before the trial magistrate to demonstrate that the appellant’s motor vehicle encroached onto the lane of the 1st respondent’s motorcycle. He urged that the said finding was therefore not made on factual basis.
16. Counsel submitted that the trial court indicated that the appellant was overtaking at a bend, when it was dark and raining, which finding was not supported by the evidence on record and in fact, the trial magistrate had herself made a finding as to the circumstances based on the evidence on record, stating otherwise. Additionally, that the appellant denied having been overtaking and it was imperative for the trial magistrate to make a finding on the same supported by the evidence on record. He urged that the trial magistrate was prepared to believe the appellant’s testimony that the accident occurred at a bend but was not prepared to consider the other circumstances that might have led to the accident.
17. Counsel urged the court to find that there were very many possibilities on how the accident could have occurred in view of the evidence on record. He reiterated that the 1st respondent failed to discharge the burden of proof and the subordinate suit should be dismissed with costs. He cited the case of Rajah JA Britestone pte vs Smith and Associates Fan East Ltd in support of this submission.
18. Counsel submitted that should the court hold that the 1st Respondent proved negligence against the appellant, then the evidence on record presents two conflicting versions and there was no reasonable means of untying the tie. That in such circumstances, the correct position should have been to hold the parties equally liable. He cited the cases of Hassein Omar Farah Vs Lento Agencies (2006) eKLR and Matunda Fruits Bus Services Limited Vs Moses Wangila and Another (2018) eKLR in support of this submission.
19. On general damages, counsel submitted that the Medical Report dated 29/3/2022 by Dr. Sokobe confirmed the injuries sustained by the plaintiff as pleaded in the plaint. His injuries were also confirmed by the P3 form and discharge summary form. He urged that Dr. Sokobe opined that the 1st respondent sustained bone and soft tissue injuries from which he had not recovered and that the report was prepared three days after the accident. A second medical examination was done by Dr. Z. Gaya and he prepared a Medical Report dated 26/1/2023. According to Dr, Gaya, the injuries sustained by the plaintiff were;
a) Multiple bruises on the left scalp,
b) Bruise on the left ear and
c) Distal fracture of the left ulna/radius.
20. Counsel urged that the trial magistrate, in making a determination as to the damages payable, only considered the medical report by Dr. Sokobe and did not take cognisance of the 2nd medical by Mr. Z. Gaya which was produced in evidence. Further, that Dr. Gaya’s Medical Report painted the correct picture and/or the state of affairs of the 1st respondent’s state of health considering that it was the most recent report. The Doctor opined that the 1st respondent had healed with no permanent disability. That in the absence of any other medical report, the same stands as the correct and true position of the 1st respondent’s state of health. Counsel urged that had the trial magistrate taken into consideration the 2nd medical, she could not have arrived at such a higher amount in quantum.
21. Counsel urged the court to substitute the award of Kshs. 500,000/= with Kshs. 200,000/= - Kshs.250, 000/= in General Damages for the injuries sustained. He relied on the findings in Anthony Njiru Nyaga v Dayah Bus Services & Another (2019) eKLR where the appellant court upheld the trial court’s award of Kshs. 200,000/= for a claimant who suffered a displaced fracture of the left radius and ulna together with other soft tissue injuries. In conclusion, he prayed the court allow the appeal.
Respondents Submission
22. Learned counsel for the Respondent urged that the appeal before this court is incompetent as the Record of Appeal indicates that the appellant is appealing against the judgment of the Trial Magistrate that was delivered on 29/09/2023 but no such judgment exists in the court record. He submitted that a competent appeal must contain copies of the ruling or the judgment that is being appealed against which is mandatory under the Civil Procedure Rules 2010. That anything short of that renders the appeal incompetent. Counsel further submitted that the Decree in the Record of Appeal indicates that the judgment that is being appealed against was delivered on 27th September 2023 which renders the Memorandum of Appeal incompetent. He urged that there can be no appeal to this court without a competent Memorandum of Appeal and further, that the appellant never sought to remedy this defect.
23. On the issue of liability, counsel referred the court to the evidence of PC Sitty Mohammed and urged that her evidence was clear that the accident occurred on the 1st Respondent's lawful lane. The Appellant was driving the Motor Vehicle from Eldoret towards Iten whereas the 1st Respondent was riding the Motor Cycle from Iten towards Eldoret. He stated that the Occurrence Book was in Court and it indicated clearly that the point of impact was on the right side and further, that the 1st Respondent tried to keep to his extreme left to try and avoid the accident but the Appellant still hit him. Further, that this evidence was corroborated by the 1st Respondent who confirmed that the point of impact was on the right side as one faces Iten general direction.
24. Counsel submitted that a reading of the Court's record confirms that the 1st Respondent's evidence was not controverted even on cross-examination. Counsel further submitted that the Appellant admitted in evidence that she was driving from Eldoret towards Iten and that there was a sharp corner at the scene of the accident. He pointed out that she did not pay cash bail but her Motor Vehicle was detained and further, that she did not avail the Inspection Report for her Motor Vehicle or produce any photographs to confirm that the accident occurred on her lane. Additionally, that she had been issued with a Police Abstract but she never produced it in Court.
25. Counsel submitted that the Police Officer testified and she had the Occurrence Book in Court and that she explained the circumstances that led to the occurrence of the accident. She even testified that the 1st Respondent tried to avoid the occurrence of this accident. The Appellant did not call any police officer in her defence and the evidence of the police officer who testified for the 1st Respondent was the evidence of an expert and the same is uncontroverted. Counsel cited the case of MiscAppl No. 427 of 2010 Ali Mohammed Sunkar vs Diamond Trust Bank (K) Limited where the Court held that the evidence of an expert can only be challenged by evidence of another expert in support of this submission. He urged that the 1st Respondent's evidence was corroborated as opposed to the Appellant's evidence.
26. Counsel cited the case of Mam Njeri Murigi -vs- Peter Macharia & Another [20161 eKLR and the case of Nester Shikuri vs Ibrahim Okwiri Matanji [2020] eKLR on the issue of the payment of cash bail and the charging of the appellant for the traffic offence. He urged that the Appellant did not file or produce the Inspection Report for her Motor Vehicle which would have confirmed if her Motor Vehicle was roadworthy. He reiterated that the Appellant admitted that there was a sharp corner at the scene of the accident which corroborates the 1st Respondent's case that she overtook other Motor Vehicle(s) and moved into his lane. Further, that there is evidence on record to demonstrate that the point of impact was on the 1st Respondent's lawful lane. Counsel urged that the fact that the Appellant was overtaking before the accident occurred and overtaking at midnight when it is raining at a sharp corner only confirms that the Appellant was not only negligent but was also reckless and careless. He cited the case of Duncan Kimathi Karagania vs Ngugi David & 3 Others (2016) eKLR in support of this submission.
27. Counsel urged that the trial magistrate did not err in holding the appellant 100% liable for the occurrence of the accident and therefore the appeal against liability should fail and be dismissed with costs to the 1st Respondent.
28. On the issue of damages, counsel submitted that the trial court was guided by the authorities and precedents with comparable injuries. He cited the case of Jeremiah & Brothers Contractor & Another vs Francis Egttsangu Kaguli (2020) eKLR, Simon Taveta vs Mercy Mutitu (2014) eKLR, and the case of Charles Oriwo Odeyo vs Appollo Justus Andabwa & Another (2017) eKLR in support of these submissions Additionally, he cited the case of Savanna Saw Mills Ltd -vs- George Mwale Mudomo [2005] eKLR and the case of Loise Wanjiku Kagunda vs Julius Gachau Mwangi CA 142/ 2003 on assessment of damages. On comparable injuries, he cited the case of Francis Nzivo Munguti & Another vs Jotham Wanyonyi Nakasana & Another [2020] eKLR where the injuries sustained were: - (i) fracture of the right radius /ulna; (ii) Multiple cuts on the forehead, right leg and foot which were stitched and the court reduced an award of Kshs. 1,000,000/= as general damages to Kshs. 600,000/=.
29. Urging that courts have even awarded higher damages in cases where victims have sustained lesser severe injuries than the ones sustained by the 1st Respondent, counsel cited the case of Easy Coach Limited vs Emily Nyangasi (2017) eKLR, where the Respondent sustained facial injuries, chest injury, injury to the back, injury to the right hand with cut wound and injury to the right leg with cut wound and the High Court upheld an award of Kshs. 700,000/=. He urged the court to dismiss the appeal with costs.
Determination
30. The duty of the appellate court is as set out in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, as follows-
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
31. On the competence of appeal as filed, it is indeed trite law that parties are bound by their pleadings and as Mrima J stated in the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.Also see the decision of the Supreme Court in the case of Raila Amollo Odinga & Another vs. IEBC & 2 others (2017) eKLR
32. In the instant case, the Memorandum of Appeal as titled is Being an appeal from the Judgement and Decree of the Hon. Christine Menya delivered on 29/9/2023 in Eldoret CMCC No. 381 of 2022 George Otieno Omullo vs Winnie Kangogo and Boomag Group Enterprises Co. Ltd. The said judgement has been availed and is part of the record of Appeal. Whereas all the details of the judgement are in conformity with the Appeal as titled, the judgement on record is dated 27th and not 29th September 2023. In light of this fact, it is my considered opinion that the date of 27th as opposed to the date of 29th is a typographical error which is my considered opinion amounts to a technical error of that does not go to the substance of the Appeal itself. In light of the provisions of Article 157 of the Constitution, Section 1A and Section 3A of the Civil Procedure Act, the court is enjoined to render substantive justice and not lock litigants out of the seat of justice on issues that can easily be explained away as procedural technicalities. In this regard, I find that this submission lacks merit and the court shall therefore proceed with the appeal on its merits.
33. On liability as apportioned by the Hon Magistrate, the evidence on record is the relevant guide. Each of the parties blame the other. The 1st respondent relied heavily on the evidence of the Police Officer (PW2) and I note from the judgement that the Hon Magistrate too relied on her evidence and that of the 1st respondent at length. She testified that she was not the Investigating Officer and was also relying on what was recorded in the Police Abstract and the OB extract. I have checked through the record of appeal. I have noted that the Police Abstract was indeed produced. However, it has no explanation on how the Accident occurred and does also state which of the two parties was found to be blameworthy. The OB extract alluded to was not only not produced by the said PW2 but is also not part of the 1st respondents list of exhibits. The Court is therefore left to determine liability based on the evidence of the parties.
34. The appellant states that it is the 1st respondent that encroached on her side of the road to the extent of pushing her off the road. That the motor cycle had lost control while negotiating a corner and came onto her lane. That the 1st respondent was hooting. In my considered opinion, if the 1st respondent is the one who had encroached onto the appellant’s lane and was bearing down on her at a high speed, she is the one who ought to have hooted to alert him of her presence on the road in light of the fact that it was night and visibility was not very good. However, because it is 1st respondent that was hooting at the appellant, the only reasonable inference the court can draw is that the converse was in fact the true position.
35. Further in her witness statement she stated that she tried avoiding getting hit by the motor cycle by moving further to the left side but could not move any further since there was a ditch. That the motor cycle hit her vehicle on the right side causing damage to the car on the right side and more specifically, the right headlight, the right side mirror and front windscreen were damaged. Again, if this were to be the case, the most obvious result is that the motor cycle rider would have sustained injuries on his right side of the body because this would have been the side which impacted with the appellant’s motor vehicle.
36. However, the injuries sustained tell otherwise. From the treatment notes and the Medical Reports produced by both parties, all his injuries were on the left side of his body. Dr. Sokobe’s Report dated 29th March 2022 outlined them as follows;
a) Multiple bruises on the left scalp
b) Bruises on the left ear
c) Blunt injury to the head
d) Fracture left ulna/radius
e) Blunt injury to the left knee
37. As rightly pointed out by Counsel for the appellant, Dr. Sokobe’s report was prepared just 3 days after the accident. Dr. Gaya’s report prepared on 26th January of 2023 being three months later noted that the 1st Respondent sustained the following injuries;
a) Left scalp multiple bruises
b) A bruise on the left ear
c) Distal fracture of the left ulna
38. All these injuries are consistent with a fall on the left side of the body. The court notes that there were no injuries on the right side of the 1st respondent’s body that were noted. With the evidence as it is, I am persuaded that the explanation by the 1st respondent on how the accident occurred and which was corroborated by the evidence of PW2 who testified that this was the entry in the OB extract that she was referring to in her testimony is the more probable version. With this finding, I do not find the explanation given by the appellant to be plausible and I am therefore satisfied that it is the appellant who encroached onto the 1st respondent’s lane while negotiating the bend and hit him on his lane. I am therefore satisfied with the Hon Magistrate’s finding on liability at 100% against the appellant and the same is accordingly upheld.
39. On apportionment of liability, the principles guiding an appellate court in determining whether to interfere with an award for damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
40. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that
“comparable injuries should attract comparable awards.”
41. The same court in Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR noted in this regard that –
The assessment of damages in personal injury case by court is guided by the following principles: -
• An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
• The award should be commensurable with the injuries sustained.
• Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
• Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
• The awards should not be inordinately low or high
42. In the case of Poa Link Services Co. Ltd & Another v Sindano Boaz Bonzemo, HCCA NO. 17 OF 2019, Riechi J upheld general damages of Kshs. 350,000/- for the plaintiff who had sustained blunt injury to the chest, bruises to lower abdomen, bruises of the right hip joint, bruises of the thigh and bruises on the knee.
43. In Francis Ochieng & another v Alice Kajimba [2015] eKLR Justice D. S Majanja substituted the award of Kshs. 500,000/- for Kshs. 350,000/- where the Respondent sustained multiple soft tissue injuries without fractures in addition to head injuries which aggravated the injuries.
44. In Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007, Korir J. as he then was) upheld an award 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 and contusion on the chest.
45. In noting that in these injuries there were no fractures, and in further noting that contrary to the submissions by the Counsel for the appellant the medical Reports by Dr. Sokobe and Dr. Gaya are not that much dissimilar, I do not find the Hon Magistrates award to have been manifestly excessive to warrant its setting aside. I find the said award to be a fair and proportionate compensation for the injuries sustained and I therefore uphold the same. Further being satisfied that the Special damages as pleaded were proved, the Hon Magistrate’s finding on the same is also upheld.
46. The upshot then is that the it is my finding that appellant’s Appeal lacks merit and the same is dismissed in its entirety with costs to the Respondents.
Read Dated and signed at ITEN on 2nd April 2025
2. The Respondent pleaded that the Appellant was, at all material times, the owner of the motor vehicle registration number KDG 443R and that on 26/03/2022, the 1st Respondent was lawfully travelling on his motor cycle registration no. KMGA 954M along the Eldoret – Iten road when at Kipchoge Stadium area, the Appellant’s vehicle was so negligently, carelessly and/or recklessly driven, managed and/or controlled that it lost control and hit the Respondent, occasioning him severe bodily injuries.
3. The Appellant filed her Defence on 19/03/2022 through Messrs Onyinkwa & Co Advocates denying the claim and the particulars of negligence alleged. After close of the pleadings, the suit proceeded to trial. The Respondent called 3 witness whereas the Appellant testified by herself and did not call any witnesses.
4. PW1 was Dr Paul Rono of Moi Teaching and Referral Hospital. In his evidence-in-chief, he produced the documents from the said hospital as exhibits being the Patient Card as PExh1, three Prescription Forms as PExh2, Radiology Form as PExh3 and Receipts as PExh4. In cross examination, he stated that he saw the respondent on 27/03/2022 but he was not the treating doctor. Further, that the radiology request form showed that the respondent had a head injury.
5. PW2 was PC Situ Mohammed of Central police station. He testified that the accident occurred along the Eldoret-Iten road involving motor vehicle registration no, KDG 443K Subaru Impresser driven by the appellant and the motor cycle KMGA 954A that was being ridden by the 1st respondent who was heading towards Eldoret town on 27/03/2022 as the motor vehicle was negotiating a corner. That the accident occurred on the rider’s lane to wit the right side facing Iten. That the rider sustained a fracture of the left hand and forehead and was taken to Moi Teaching and Referral hospital.
6. In cross examination, the witnessed confirmed that he was not the investigating officer and was also not present at the scene of the accident. That his evidence was limited to the production of the OB extract and the Police Abstract. That he did not have the sketch map to show the point of impact and he also did not look at the defendants’ motor vehicle. He stated that it is the OB extract that he was relying on that indicated that the appellant and the 1st respondent were driving in opposite directions and the accident occurred on the right side of the road, and that the rider tried to keep to his rear left.
7. PW3 was the 1st respondent. He adopted his witness statement dated 28th April 2022 as his evidence in chief. He stated that on the material date he was traveling from Iten to Eldoret riding on motor cycle registration number KMGA 954M when he was involved in an accident. He stated that the motor vehicle approached from the opposite direction and he was on the right hand side. The driver was overtaking, found him on the right side and knocked him down. He injured his head, left hand and foot and he had bruises. He was treated at Moi teaching referral hospital and reported the incident to Eldoret Police Station. he produced the medical documents as exhibits and stated that he blamed the driver for the accident.
8. In cross examination, he testified that it was rainy and time was at 11.40 pm. That he was properly dressed and that if he had no helmet he would have died. He denied that over speeding or that he was overtaking and stated that he was very careful. The Plaintiff’ then closed his case.
9. The Appellant testified as DW1 and stated that on 26/03/2022 she was driving from Eldoret to Iten and while negotiating a corner, there was a motorcycle that was speeding and she tried to give way but that the further she went, it still pushed her it pushed her and she even bucked. That the motor cycle was even hooting. That eventually it knocked her. She stated that she was not overtaking because the bend was so sharp one could not overtake. She stated that she was on the extreme left and blamed the rider for causing the accident as he was the one who encroached on her lane.
10. In cross examination she stated that she was alone in the car and that she was not told that she was the one to blame. She stated that it was drizzling and that the incident occurred around midnight.
In its Judgement delivered on 27/09/2023, the trial Magistrate entered Judgment in favour of the 1st Respondent and against the appellant as follows;
(i) Liability at 100%
(ii) General Damages of Kshs 500,000/-
(iii) Special Damages of Kshs 10,235/-
(iv) Costs of the suit and interest at court rates.
11. Dissatisfied with the Judgment, the Appellant filed this Appeal on 27/10/2023. In the Memorandum of Appeal, the following grounds were listed;
i) That the learned magistrate erred in law and fact in holding the appellant 100% liable without taking into consideration the evidence adduced.
ii) That the learned magistrate erred in law and fact in failing to properly analyse the evidence adduced by the appellant thereby arriving at a wholly erroneous decision on the issue of liability.
iii) That without prejudice to the foregoing, the learned magistrate erred in law and fact by failing to apportion liability on the part of the respondent and in particular the 1st respondent in view of the evidence on record.
iv) The Learned magistrate erred in law and in fact in adopting the wrong principles in assessing the damages payable to the 1st respondent thereby awarding excessive damages in view of the injuries sustained by the respondent.
v) The Learned magistrate erred in law and in fact in failing to consider the evidence on record and relevant authorities with comparable injuries to the ones sustained by the 1st respondent thereby awarding excessive damages.
vi) The Learned magistrate erred in law and in fact by failing to consider the submissions by the appellant on both liability and quantum thereby arriving at an erroneous decision.
Hearing of the Appeal
12. The Appeal was canvassed by way of written Submissions. Pursuant thereto, the Appellant filed submissions on 15/04/2024 through the firm of Messrs Onyinkwa & Co Advocates while the Respondent filed submissions dated 28/01/2025 through the firm of Messrs G.K Okara & Co. Advocates.
Appellants Submissions
13. Learned Counsel for the appellant submitted that the trial magistrate erred in finding the appellant 100% liable for the accident because neither the testimonies nor the evidence adduced during the trial pointed towards the blame worthiness of the appellant. He cited Section 107 of the Evidence Act on burden of proof and urged that from the evidence adduced in court, what was clear that both the appellant’s motor vehicle and the 1st respondent’s motorcycle were in motion. Further, that it was also clear from the evidence adduced by the parties that the appellants motor vehicle and the 1st respondent’s motorcycle were moving in opposite directions. So, for there to have been a collision one must have moved to the other lane under normal circumstances.
14. Counsel contrasted the testimonies of the witnesses given in court and urged that the evidence of PW2, being the police abstract, only proved that an accident was reported as having occurred between the appellant’s motor vehicle and the 1st respondents motor cycle. Counsel urged that the same was not in dispute. With regard to the circumstances surrounding the accident, he stated that the testimony was bereft of any substance and the trial magistrate appreciated the same in her judgement when she stated
“I am alive to the fact that the police who testified did not attend to the scene and I may not say much about her evidence. I feel from the facts the investigations officer was not well versed with the facts"
15. Counsel questioned how the trial court, having observed as aforesaid, arrived at a determination that the appellant was 100% liable. Both parties gave conflicting testimonies blaming each other and the independent witness did not offer any information or evidence to help the court paint a picture of the scene of the accident. Counsel pointed out that according to the trial magistrate, the 1st respondent was hit on his lane and questioned what informed this. Counsel urged that the appellant indicated that the accident actually occurred on her lane and posed the question as to why the trial magistrate disregarded her testimony. He additionally questioned the evidence that demonstrated the where the point of impact was and submitted that there was none. Counsel submitted that there was no evidence placed before the trial magistrate to demonstrate that the appellant’s motor vehicle encroached onto the lane of the 1st respondent’s motorcycle. He urged that the said finding was therefore not made on factual basis.
16. Counsel submitted that the trial court indicated that the appellant was overtaking at a bend, when it was dark and raining, which finding was not supported by the evidence on record and in fact, the trial magistrate had herself made a finding as to the circumstances based on the evidence on record, stating otherwise. Additionally, that the appellant denied having been overtaking and it was imperative for the trial magistrate to make a finding on the same supported by the evidence on record. He urged that the trial magistrate was prepared to believe the appellant’s testimony that the accident occurred at a bend but was not prepared to consider the other circumstances that might have led to the accident.
17. Counsel urged the court to find that there were very many possibilities on how the accident could have occurred in view of the evidence on record. He reiterated that the 1st respondent failed to discharge the burden of proof and the subordinate suit should be dismissed with costs. He cited the case of Rajah JA Britestone pte vs Smith and Associates Fan East Ltd in support of this submission.
18. Counsel submitted that should the court hold that the 1st Respondent proved negligence against the appellant, then the evidence on record presents two conflicting versions and there was no reasonable means of untying the tie. That in such circumstances, the correct position should have been to hold the parties equally liable. He cited the cases of Hassein Omar Farah Vs Lento Agencies (2006) eKLR and Matunda Fruits Bus Services Limited Vs Moses Wangila and Another (2018) eKLR in support of this submission.
19. On general damages, counsel submitted that the Medical Report dated 29/3/2022 by Dr. Sokobe confirmed the injuries sustained by the plaintiff as pleaded in the plaint. His injuries were also confirmed by the P3 form and discharge summary form. He urged that Dr. Sokobe opined that the 1st respondent sustained bone and soft tissue injuries from which he had not recovered and that the report was prepared three days after the accident. A second medical examination was done by Dr. Z. Gaya and he prepared a Medical Report dated 26/1/2023. According to Dr, Gaya, the injuries sustained by the plaintiff were;
a) Multiple bruises on the left scalp,
b) Bruise on the left ear and
c) Distal fracture of the left ulna/radius.
20. Counsel urged that the trial magistrate, in making a determination as to the damages payable, only considered the medical report by Dr. Sokobe and did not take cognisance of the 2nd medical by Mr. Z. Gaya which was produced in evidence. Further, that Dr. Gaya’s Medical Report painted the correct picture and/or the state of affairs of the 1st respondent’s state of health considering that it was the most recent report. The Doctor opined that the 1st respondent had healed with no permanent disability. That in the absence of any other medical report, the same stands as the correct and true position of the 1st respondent’s state of health. Counsel urged that had the trial magistrate taken into consideration the 2nd medical, she could not have arrived at such a higher amount in quantum.
21. Counsel urged the court to substitute the award of Kshs. 500,000/= with Kshs. 200,000/= - Kshs.250, 000/= in General Damages for the injuries sustained. He relied on the findings in Anthony Njiru Nyaga v Dayah Bus Services & Another (2019) eKLR where the appellant court upheld the trial court’s award of Kshs. 200,000/= for a claimant who suffered a displaced fracture of the left radius and ulna together with other soft tissue injuries. In conclusion, he prayed the court allow the appeal.
Respondents Submission
22. Learned counsel for the Respondent urged that the appeal before this court is incompetent as the Record of Appeal indicates that the appellant is appealing against the judgment of the Trial Magistrate that was delivered on 29/09/2023 but no such judgment exists in the court record. He submitted that a competent appeal must contain copies of the ruling or the judgment that is being appealed against which is mandatory under the Civil Procedure Rules 2010. That anything short of that renders the appeal incompetent. Counsel further submitted that the Decree in the Record of Appeal indicates that the judgment that is being appealed against was delivered on 27th September 2023 which renders the Memorandum of Appeal incompetent. He urged that there can be no appeal to this court without a competent Memorandum of Appeal and further, that the appellant never sought to remedy this defect.
23. On the issue of liability, counsel referred the court to the evidence of PC Sitty Mohammed and urged that her evidence was clear that the accident occurred on the 1st Respondent's lawful lane. The Appellant was driving the Motor Vehicle from Eldoret towards Iten whereas the 1st Respondent was riding the Motor Cycle from Iten towards Eldoret. He stated that the Occurrence Book was in Court and it indicated clearly that the point of impact was on the right side and further, that the 1st Respondent tried to keep to his extreme left to try and avoid the accident but the Appellant still hit him. Further, that this evidence was corroborated by the 1st Respondent who confirmed that the point of impact was on the right side as one faces Iten general direction.
24. Counsel submitted that a reading of the Court's record confirms that the 1st Respondent's evidence was not controverted even on cross-examination. Counsel further submitted that the Appellant admitted in evidence that she was driving from Eldoret towards Iten and that there was a sharp corner at the scene of the accident. He pointed out that she did not pay cash bail but her Motor Vehicle was detained and further, that she did not avail the Inspection Report for her Motor Vehicle or produce any photographs to confirm that the accident occurred on her lane. Additionally, that she had been issued with a Police Abstract but she never produced it in Court.
25. Counsel submitted that the Police Officer testified and she had the Occurrence Book in Court and that she explained the circumstances that led to the occurrence of the accident. She even testified that the 1st Respondent tried to avoid the occurrence of this accident. The Appellant did not call any police officer in her defence and the evidence of the police officer who testified for the 1st Respondent was the evidence of an expert and the same is uncontroverted. Counsel cited the case of MiscAppl No. 427 of 2010 Ali Mohammed Sunkar vs Diamond Trust Bank (K) Limited where the Court held that the evidence of an expert can only be challenged by evidence of another expert in support of this submission. He urged that the 1st Respondent's evidence was corroborated as opposed to the Appellant's evidence.
26. Counsel cited the case of Mam Njeri Murigi -vs- Peter Macharia & Another [20161 eKLR and the case of Nester Shikuri vs Ibrahim Okwiri Matanji [2020] eKLR on the issue of the payment of cash bail and the charging of the appellant for the traffic offence. He urged that the Appellant did not file or produce the Inspection Report for her Motor Vehicle which would have confirmed if her Motor Vehicle was roadworthy. He reiterated that the Appellant admitted that there was a sharp corner at the scene of the accident which corroborates the 1st Respondent's case that she overtook other Motor Vehicle(s) and moved into his lane. Further, that there is evidence on record to demonstrate that the point of impact was on the 1st Respondent's lawful lane. Counsel urged that the fact that the Appellant was overtaking before the accident occurred and overtaking at midnight when it is raining at a sharp corner only confirms that the Appellant was not only negligent but was also reckless and careless. He cited the case of Duncan Kimathi Karagania vs Ngugi David & 3 Others (2016) eKLR in support of this submission.
27. Counsel urged that the trial magistrate did not err in holding the appellant 100% liable for the occurrence of the accident and therefore the appeal against liability should fail and be dismissed with costs to the 1st Respondent.
28. On the issue of damages, counsel submitted that the trial court was guided by the authorities and precedents with comparable injuries. He cited the case of Jeremiah & Brothers Contractor & Another vs Francis Egttsangu Kaguli (2020) eKLR, Simon Taveta vs Mercy Mutitu (2014) eKLR, and the case of Charles Oriwo Odeyo vs Appollo Justus Andabwa & Another (2017) eKLR in support of these submissions Additionally, he cited the case of Savanna Saw Mills Ltd -vs- George Mwale Mudomo [2005] eKLR and the case of Loise Wanjiku Kagunda vs Julius Gachau Mwangi CA 142/ 2003 on assessment of damages. On comparable injuries, he cited the case of Francis Nzivo Munguti & Another vs Jotham Wanyonyi Nakasana & Another [2020] eKLR where the injuries sustained were: - (i) fracture of the right radius /ulna; (ii) Multiple cuts on the forehead, right leg and foot which were stitched and the court reduced an award of Kshs. 1,000,000/= as general damages to Kshs. 600,000/=.
29. Urging that courts have even awarded higher damages in cases where victims have sustained lesser severe injuries than the ones sustained by the 1st Respondent, counsel cited the case of Easy Coach Limited vs Emily Nyangasi (2017) eKLR, where the Respondent sustained facial injuries, chest injury, injury to the back, injury to the right hand with cut wound and injury to the right leg with cut wound and the High Court upheld an award of Kshs. 700,000/=. He urged the court to dismiss the appeal with costs.
Determination
30. The duty of the appellate court is as set out in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, as follows-
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
31. On the competence of appeal as filed, it is indeed trite law that parties are bound by their pleadings and as Mrima J stated in the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.Also see the decision of the Supreme Court in the case of Raila Amollo Odinga & Another vs. IEBC & 2 others (2017) eKLR
32. In the instant case, the Memorandum of Appeal as titled is Being an appeal from the Judgement and Decree of the Hon. Christine Menya delivered on 29/9/2023 in Eldoret CMCC No. 381 of 2022 George Otieno Omullo vs Winnie Kangogo and Boomag Group Enterprises Co. Ltd. The said judgement has been availed and is part of the record of Appeal. Whereas all the details of the judgement are in conformity with the Appeal as titled, the judgement on record is dated 27th and not 29th September 2023. In light of this fact, it is my considered opinion that the date of 27th as opposed to the date of 29th is a typographical error which is my considered opinion amounts to a technical error of that does not go to the substance of the Appeal itself. In light of the provisions of Article 157 of the Constitution, Section 1A and Section 3A of the Civil Procedure Act, the court is enjoined to render substantive justice and not lock litigants out of the seat of justice on issues that can easily be explained away as procedural technicalities. In this regard, I find that this submission lacks merit and the court shall therefore proceed with the appeal on its merits.
33. On liability as apportioned by the Hon Magistrate, the evidence on record is the relevant guide. Each of the parties blame the other. The 1st respondent relied heavily on the evidence of the Police Officer (PW2) and I note from the judgement that the Hon Magistrate too relied on her evidence and that of the 1st respondent at length. She testified that she was not the Investigating Officer and was also relying on what was recorded in the Police Abstract and the OB extract. I have checked through the record of appeal. I have noted that the Police Abstract was indeed produced. However, it has no explanation on how the Accident occurred and does also state which of the two parties was found to be blameworthy. The OB extract alluded to was not only not produced by the said PW2 but is also not part of the 1st respondents list of exhibits. The Court is therefore left to determine liability based on the evidence of the parties.
34. The appellant states that it is the 1st respondent that encroached on her side of the road to the extent of pushing her off the road. That the motor cycle had lost control while negotiating a corner and came onto her lane. That the 1st respondent was hooting. In my considered opinion, if the 1st respondent is the one who had encroached onto the appellant’s lane and was bearing down on her at a high speed, she is the one who ought to have hooted to alert him of her presence on the road in light of the fact that it was night and visibility was not very good. However, because it is 1st respondent that was hooting at the appellant, the only reasonable inference the court can draw is that the converse was in fact the true position.
35. Further in her witness statement she stated that she tried avoiding getting hit by the motor cycle by moving further to the left side but could not move any further since there was a ditch. That the motor cycle hit her vehicle on the right side causing damage to the car on the right side and more specifically, the right headlight, the right side mirror and front windscreen were damaged. Again, if this were to be the case, the most obvious result is that the motor cycle rider would have sustained injuries on his right side of the body because this would have been the side which impacted with the appellant’s motor vehicle.
36. However, the injuries sustained tell otherwise. From the treatment notes and the Medical Reports produced by both parties, all his injuries were on the left side of his body. Dr. Sokobe’s Report dated 29th March 2022 outlined them as follows;
a) Multiple bruises on the left scalp
b) Bruises on the left ear
c) Blunt injury to the head
d) Fracture left ulna/radius
e) Blunt injury to the left knee
37. As rightly pointed out by Counsel for the appellant, Dr. Sokobe’s report was prepared just 3 days after the accident. Dr. Gaya’s report prepared on 26th January of 2023 being three months later noted that the 1st Respondent sustained the following injuries;
a) Left scalp multiple bruises
b) A bruise on the left ear
c) Distal fracture of the left ulna
38. All these injuries are consistent with a fall on the left side of the body. The court notes that there were no injuries on the right side of the 1st respondent’s body that were noted. With the evidence as it is, I am persuaded that the explanation by the 1st respondent on how the accident occurred and which was corroborated by the evidence of PW2 who testified that this was the entry in the OB extract that she was referring to in her testimony is the more probable version. With this finding, I do not find the explanation given by the appellant to be plausible and I am therefore satisfied that it is the appellant who encroached onto the 1st respondent’s lane while negotiating the bend and hit him on his lane. I am therefore satisfied with the Hon Magistrate’s finding on liability at 100% against the appellant and the same is accordingly upheld.
39. On apportionment of liability, the principles guiding an appellate court in determining whether to interfere with an award for damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
40. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that
“comparable injuries should attract comparable awards.”
41. The same court in Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR noted in this regard that –
The assessment of damages in personal injury case by court is guided by the following principles: -
• An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
• The award should be commensurable with the injuries sustained.
• Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
• Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
• The awards should not be inordinately low or high
42. In the case of Poa Link Services Co. Ltd & Another v Sindano Boaz Bonzemo, HCCA NO. 17 OF 2019, Riechi J upheld general damages of Kshs. 350,000/- for the plaintiff who had sustained blunt injury to the chest, bruises to lower abdomen, bruises of the right hip joint, bruises of the thigh and bruises on the knee.
43. In Francis Ochieng & another v Alice Kajimba [2015] eKLR Justice D. S Majanja substituted the award of Kshs. 500,000/- for Kshs. 350,000/- where the Respondent sustained multiple soft tissue injuries without fractures in addition to head injuries which aggravated the injuries.
44. In Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007, Korir J. as he then was) upheld an award 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 and contusion on the chest.
45. In noting that in these injuries there were no fractures, and in further noting that contrary to the submissions by the Counsel for the appellant the medical Reports by Dr. Sokobe and Dr. Gaya are not that much dissimilar, I do not find the Hon Magistrates award to have been manifestly excessive to warrant its setting aside. I find the said award to be a fair and proportionate compensation for the injuries sustained and I therefore uphold the same. Further being satisfied that the Special damages as pleaded were proved, the Hon Magistrate’s finding on the same is also upheld.
46. The upshot then is that the it is my finding that appellant’s Appeal lacks merit and the same is dismissed in its entirety with costs to the Respondents.
Read Dated and signed at ITEN on 2nd April 2025