Peter Sabatia Kariuki v Afb Kenya Limited & 1 other

Submissions cannot be a stand alone question. Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749 that: “ As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 3. The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR: “ Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” Pleadings 4. Vide a Plaint dated 30.9.2020, the Appellant sought general damages for pain and suffering and special damages of Ksh. 24,306/=. The latter were awarded and not subject of this appeal. The claim arose from the accident that occurred on 30.12.2018 when the Appellant was a pedal cyclist along Ngong Road when the Defendant’s motor vehicle registration No. KCR 279S was so negligently driven that it caused an accident in which the Appellant suffered severe personal injuries. However, the only injury pleaded was a fracture of the right tibia and fibula. 5. The 2nd Respondent entered appearance and filed defence denying the averments in the plaint and blaming the accident on the rider and the Appellant. Evidence 6. The Appellant was PW1. He produced the documents in the list of documents dated 30.9.2022 and relied on his witness statement of the same date. It was his case that the Respondent was negligent. He suffered fracture of the tibia and fibula. He was fixed with a metal implant that broke and was to be replaced. 7. On the part of the Respondent, DW1 was the Respondent. He testified that he was driving towards town. A cyclist came onto the road. He hooted but the Appellant did not move. He joined the road abruptly and was hit. According to him, there were oncoming motor vehicle so he swerved. Submissions 8. The Appellant filed submissions in support of the appeal dated 7.10.2024. It was submitted that the court erred in apportioning liability. That the Appellant proved that the Respondents were 100% liable https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 2

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for the accident. Reliance was placed inter alia on Jume Mwarua Kaputsu v Pallet Logistics Limited (2020) eKLR. 9. On quantum it was submitted that the Ksh. 600,000/= was too low and an erroneous estimate of general damages. They proposed Ksh. 2,000,000/= relying on Michael Njagi Karimi v Gideon Ndungu Nguribu & another [2013] KEHC 6544 (KLR), where H. P.G. Waweru, awarded a sum of Ksh. 2,000,000/= on 22nd day of August 2013 for pain, suffering and loss of amenities. In that matter, the claimant sustained multiple serious injuries, namely bruises, swelling and tenderness on the right arm and forearm with a displaced fracture of the right humerus; deformity and swelling of the right forearm with fractures of the radius and ulna accompanied by displacement; injury to the right lower limb manifested by tenderness, swelling and deformity, with X-ray examination confirming fractures of the tibia and fibula; and swelling and deformity of the left thigh with apparent shortening, where an X-ray revealed a segmental fracture of the femur with marked displacement. There is no relationship between the injuries in that matter, and this case. 10. The 2nd Respondent filed submissions dated 11.11.2024. It was submitted that the lower court correctly found 80:20 liability for the Appellant. That the Appellant did not call witnesses who saw the accident happen or the police officer. Reliance was placed on John Kiria & 6 Others v Kaunda Musyoka & Another (2010) eKLR based on which it was submitted that the police abstract was only prima facie evidence that an accident was reported. It was submitted that the police abstract produced by the Respondent showed that the accident was pending under investigation. 11. On damages, it was submitted that Ksh. 400,000/= would be appropriate award in general damages. They relied inter alia on Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR). In that case, the claimant sustained a fracture on the right leg, chest injuries, trauma to the eye bridge, injury to the left leg, and injury to the left eye. Though the injuries are closer to the one suffered by the appellant, they are more serious. Analysis 12. The central issue for determination is whether the learned magistrate erred in dismissing the Plaintiff’s case. There is a secondary issue whether the damages awarded were inordinately low as to amount to an erroneous estimate of damages. 13. This being a first appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. Except however, it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows: “ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 14. On liability, Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 3

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107. 15. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” The question of burden of proof was addressed in the case of Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334. The Court of Appeal held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 16. It follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case. Therefore, the burden is not on the Plaintiff, or the Defendant. It is on the party who alleges. Further, in Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that: “ As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” 17. Further, the question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that: “ In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 4

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18. The balance of probability standard meant that a court is satisfied an event occurred if on the evidence, the occurrence of the event was more likely than not. In Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 it was held that; “ The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 19. The degree of proof must carry a reasonable degree of probability, but not so high as is required in a criminal case. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that: “ Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 20. The balance of probability standard meant that a court is satisfied an event occurred if on the evidence, the occurrence of the event was more likely than not. In Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 the court held that; “ The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 21. The degree of proof must carry a reasonable degree of probability, but not so high as is required in a criminal case. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that: “ Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 5

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which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.” 22. The accident can therefore not be said to have occurred by magic or unidentified flying object. In a court room situation, we deal with empirical evidence on what is more probable than the other. The court can possibly get it wrong but if better still 50.01:49.99, there can be no better equal chance. I note that on cross examination, DW1 blamed the cyclist. 23. It was the duty of the Appellant to prove contributory negligence. There can be no liability without fault. In the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, the court of appeal posited as doth: There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. 24. The Appellant alleged that the 2nd Respondent was to blame. 2nd Respondent refuted the claim and alleged that it was the cyclist, Appellant to blame. It was evidence that though the Respondent was largely to blame, the cyclist emerged onto the road without regard to his own safety. The court noted this fact. The appellant concealed the page regarding analysis by placing on the record only page 1 and 3. However, the court was able to access the missing page. The court below exercised its discretion. The exercise of discretion cannot be faulted unless the court was plainly wrong or took into consideration extraneous evidence. The aspect of discretion was settled in Mbogo & Another vs. Shah [1968] E.A. 93 at page 96, where the legendary Sir Charles Newbold P elucidated the point in the most poignant way as hereunder: “ …a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice….’’ 25. I do not find any fault with the court on the finding on liability. Accordingly, the appeal on liability is dismissed. 26. On quantum, court awarded a sum of Ksh. 600,000/= for general damages while considering the injuries suffered by the Appellant being, fracture of the tibia and fibula. It is thus settled that for the Appellate court to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. 27. Damages must be commensurate with similar injuries. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other. This was addressed in the case of Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, that it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently. 28. The second aspect of quantum relates to the position of expert opinions in award of damages. The opinion is not binding on the court but must be weighed against other evidence on record. However, parties decided not to call the experts. This has a profound effect on the believability of experts. In the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 6

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case of Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, the court addressed in depth the issue of experts as follows; “ It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..." 29. There is no dispute that the Respondent suffered a fracture of the tibia and fibula. Medical reports produced in court show this particular injury. There will always be attempts for the plaintiff to exaggerate the injuries while the defendant downplays them. The experts come in, in that respect. Dr. Wambugu gave 2% disability since the fractures have re-united. He proposed a sum of Ksh. 85,000/= in a low-cost private institution. 30. Dr. Wobaki gave 30% disability, presently. He stated that there was implant failure and non-union. The report was written in March 2021. He stated that reports of Dr. Okere and Dr. Wambugu were written in 2020 before implant failure. Dr. Okere gave a permanent disability of 30% and evidence that an implant required to be removed at a costs of Ksh. 150,000/=. 31. It is not lost that the reports were not defended in court. The reports are exaggerated from the nature of treatment. The failure of implant is novus actus interveeniens for which the respondent is not in control. In the case of Elijah Ole Kool v George Ikonya Thuo [2001] eKLR, A. Visram J observed as follows: Although the Plaintiff may be able to trace even a consequential connection between an injury and the negligence of the Defendant, the law does necessarily attach liability to the Defendant who has been negligent. In Walker v. Goe [1859], 4 H. & N. 350, it was held that there can be no liability unless the damage is the “proximate” result of the negligence. It, therefore, remains upon the Plaintiff to prove both that the Defendant was negligent and that his negligence caused or materially contributed to the damage (see Graig v. Grasgaw Corpn. [1919] 35 T.L.R. 214, at p. 215 per Lord Buckmaster). The Learned Authors of Volume 28 of Halsburys Laws Of England (3rd Edition) say as follows at page 28: Negligence is an effective cause of an injury which either is intended, or, judged broadly on common principles, is a direct consequence. When negligence has been established, liability fallows for all the consequences which are in fact the direct outcome of it, whether or not the damage is a consequence that might reasonably be foreseen. In other words, causation is a matter of fact to be determined by common sense principles. Lord Wright said as follows in Yorkshire Dale S.S. Co. Ltd. V. Minister of War Transport [1942] A.C. 691, H.L. at p. 706:-“……the choice of the real or efficient cause from out of the whole complex of the facts must be made by applying common sense standards. Causation is to be understood as a man in the street, and not as either the scientist or the metaphysician, would understand it.As Lord Denning said in Davies v https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 7

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Swan Motor Co. (Swansea) Ltd. [1949] 2 C.B. 291 at p. 321; “the efficiency of causes does not depend on their proximity in point of time.” It is enough that the cause forms part of a chain of events which has in fact led to the injury. What cause will be effective? The Learned Authors of Halsburys Supra at p. 28 say as follows: “ In the absence of intervention by voluntary human action the original act is to be regarded as a cause of the injury, provided that its effect is still actively continuing and has not been superseded by some independent natural cause…….……..If in fact the defendant’s neglect of a proper precaution has caused the injury, the court will not enter into hypothetical inquiry to establish whether the Plaintiff’s injury must necessarily have happened with or without the defendant’s negligence. In other words, the defendant’s negligent act or omission is the cause of the Plaintiff’s injury unless it is shown that there was some voluntary responsible human intervention in the chain of events between the original negligent act or omission and the Plaintiff’s injury: The inquiry will be whether the injury can be treated as flowing directly or substantially from the negligence. In The Oropesa [1943] 1 All E.R. 211 at 213 Lord Wright said as follows:-“Certain well known formulae are invoked, such as that the chain of causation was broken and there was a novus actus interveniens. These phrases, sanctified as they are by standing authority, only mean that there was not such a direct relationship between the act of negligence and the injury that the one can be treated as flowing directly from the other. 32. On a more fundamental note, the lower court judgment is a little difficult to deal with. The court arrived at the decision without pointing towards the process and factors considered. It is a nineparagraph judgment. Unsurprisingly there are no authorities quoted for the decision. While brevity is encouraged, it shall never be at the expense of reasoning. 33. The Appellant submitted Ksh. 2,000,000/= as appropriate damages and relied on Michael Njafgi Karimi v Gideon Ndungu Nduribu (supra). The said authority does not present same injury matrix as this matter. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.” 34. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; - 35. a. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. b. The award should be commensurable with the injuries sustained. c. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. d. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. e. The awards should not be inordinately low or high. Therefore, I find the following cases to present similar fact situation to the appeal herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 8

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36. In the case of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR the Respondent had suffered a fracture of tibia and fibula bones of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries and soft tissue injury on the lower left leg and the High Court set aside the award of Ksh 600,000/= and replaced the same with Ksh. 400,000/=. 37. In Ndwiga & another v Mukimba [2022] KEHC 11793 (KLR) the High Court reduced an award of Ksh. 1,200,000/= to Ksh. 500,000/= for a Plaintiff who suffered the following injuries:Tenderness and swelling of the left leg.Fracture of tibia and fibula left leg. 38. In Sammy Mugo Kinyanjui & Another vs Kairo Thuo (2017) eKLR, Ksh. 600,000/= was awarded for the Plaintiff who had slight tenderness in the forehead, neck, chest, abdomen, right knee and both legs; fracture of the right tibia; fracture of the left tibia and fibula. 39. All these authorities show that the Appellant’s proposed award of Ksh. 2,000,000/= is inordinately high and not a correct estimate of general damages. The award of Ksh. 600,000/= by the lower court is commensurate with the injuries and is not inordinately high. I uphold it. 40. On future medical expenses, I note that the contention by the Appellant is that whereas the two medical reports were concurrent that Ksh. 117,500/= would be required for the Appellant for future medical expenses, the Appellant faulted the lower court for awarding Ksh. 117,500/= under this head. A perusal of the medical reports reveal that the medical report dated 11.12.2020 by Wambugu for the 2nd Respondent projected Ksh. 85,000/= as cost for removing metal implants while the medical report by the Appellant’s medical doctor dated 14.9.2020 projected Ksh. 150,000/= for removal of the implants. Based on this, the lower court granted the average. However, from the explanation, it is Dr. Wambugu’s report that even identified the hospital that the appellant could be treated. He was already being treated at a low cost mission hospital, that is PCEA Kikuyu. The proper award ought to have been as proposed by Dr. Wambugu. However, there is no appeal in respect thereof. 41. On a happy note, the court is cognizant of the truism that the Appellant was under duty to plead even an approximate amount that would constitute future medical expenses. In the case of Tracom Limited & Another vs. Hassan Mohamed Adan Civil Appeal Number 106 of 2006, the Court of Appeal stated:“ We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require. 42. Future medical expenses as special damages should be pleaded and proved. As was held in the cases of Gulhamid Mohamedali Jivanji vs Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98 and Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992, while the cost of future medical expenses are special damages and whereas a claim for special damages should not only be pleaded but strictly proved, what amounts to strict proof must depend on the circumstances that is to say, the character of the acts producing damage, and the circumstances under which those acts were one. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 9

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43. The Appellant did not plead future medical expenses and the 2nd Respondent did not appeal against the award of future medical expenses. I therefore find no basis to interfere with the award granted by the lower court. Similarly, there was no appeal on the award of special damages and the same remains undisturbed. What remains is costs. 44. The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows: 45. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 46. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: “ (18) 47. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The Respondent was lamenting and rightly so, that the Appellant was having his case and eating the same. Having filed an unmeritorious appeal, the court has to consider whether to award costs or not. The Respondent has instructed and spent money to defend the appeal. There will be no harm, if they are awarded costs, which is this court’s discretion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 10

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Determination 48. In the upshot, I make the following orders: a. The entire appeal lacks merit and is accordingly dismissed with costs of Ksh. 75,000/=. b. 30 days stay of execution on costs. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF SEPTEMBER, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Ms. Aluodo for the Appellant Ms. Njoki for the Respondent Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13545/eng@2025-09-29 11

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