New Adatia Wholesalers Ltd v Emmanuel Barasa Wanjala

Bungoma road and was in his lawful lane, the left lane from Bungoma general directions towards Kanduyi general directions, at a speed of 20 km/h. He indicated his intention to join the feeder road heading to Bukembe road as he approached Lusaka junction. At that point, a motorcycle emerged at high speed, and the rider rammed into his left rear wheel. He stopped immediately, rushed the driver to hospital, and later reported the accident at Bungoma police station. He blamed the motorcycle rider for emerging at high speed and ramming into his vehicle. Grounds of Appeal 1. That the learned trial Magistrate erred in law and fact by in holding the appellant 100% liable or at all in negligence in view of the evidence on record. 2. That the learned trial Magistrate erred in law and fact by failing to dismiss the respondent’s claim against the appellant in view of the evidence on record. 3. That the learned trial Magistrate erred in law and fact in failing to consider the submissions by the appellant on both the issue of liability and quantum. 4. That the learned trial Magistrate erred in law and fact in using the wrong principles in the assessment of damages, thereby arriving at an erroneous decision. 5. That the learned trial Magistrate erred in law and fact by failing to take into consideration and/or be guided by relevant authorities and/or precedents with comparable injuries to the ones sustained by the respondent, thereby awarding at an excessive amount to general damages. 6. That the learned trial Magistrate erred in law and fact by awarding the respondent Kshs. 700,000/= as general damages which is inordinately high , in view of the evidence on record. 7. The appellant seeks that the judgment of the trial court be set aside and that the appeal be allowed. That the Honorable Court be pleased to set aside the subordinate court’s judgment on liability and substitute the same with an order dismissing the respondent’s case with costs to the appellant. The Honorable Court be pleased to set aside the general damages awarded to the respondent herein and reassess the same downwards and that the costs of the appeal be awarded to the appellant. Analysis and Determination. 8. As this is a first appeal, the court is tasked with evaluating the evidence and forming its own conclusions, bearing in mind that it neither saw nor heard the witnesses (Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123). I have reviewed the competing submissions made by the parties, along with the evidence presented at the hearing and the authorities cited by the parties. 9. The issues to be determined are whether the trial court erred in holding the appellant entirely liable and whether the award of damages was excessive. Regarding liability, the trial court in its judgment failed to provide reasons for holding the defendant fully responsible. The evidence concerning the accident comes only from the respondent and appellant. PW2, the officer who produced the police abstract, testified that the appellant was at fault for failing to give way. Neither party was charged, nor was any sketch plan produced to show the positions of the vehicle and motorcycle after the accident. Either version could be correct. In Hussein Omar Farah v Lento Agencies [2006] eKLR, the Court of Appeal stated: " In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16486/eng@2025-10-08 2

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jurisdiction and other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame." I am guided by this authority; thus, if it is not clear who is to blame for the accident, liability should be shared. Therefore, I set aside the trial court’s finding of 100% liability and instead apportion liability at 50:50. 10. In an appeal concerning damages, this court must be satisfied that the trial court, in assessing damages, either considered an irrelevant factor, failed to consider a relevant one, or that the awarded amount is so excessively low or high as to constitute a wholly incorrect estimate of the damages. (See Kemfro Africa Limited t/a 'Meru Express Services (1976)' & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR). 11. On the issue of quantum, the trial court awarded general damages of Kshs. 700,000/-. The appellant claims that the award is excessive, while the respondents assert that it is not. The injuries suffered by the plaintiff are undisputed; he sustained a head injury with brief loss of consciousness, several soft tissue injuries, traumatic avulsions of two upper left incisors, and loosening of two molar teeth. I note that during the hearing, the respondent testified that he had healed well. The appellant has suggested an award of Kshs. 250,000 to 300000. I have considered the cases cited; the award indicated by the appellant is quite low for the injuries sustained. Conversely, the cases cited by the respondent involved plaintiffs who suffered more serious injuries. In Coast Motorcycles Watu Credit v SJM (Minor Suing Through Father & Next Friend DMC) (Civil Appeal 053 of 2022) [2023] KEHC 24917 (KLR) (24 October 2023) (Judgment), the respondent in this case lost her two lower teeth, and the court awarded general damages of Kshs. 500,000. In Noreen v Beatha [2025] KEHC 1373 (KLR), the appellant lost three teeth and was awarded Kshs. 550,000. In Joseph Muita Nthis v Fredrick Moses M. Katuva [2017] eKLR, the plaintiff sustained injuries to the face, loose teeth (41, 41, 41,31, and 32), loss of two teeth, as well as blunt chest and back injuries, and was awarded Kshs. 400,000. Considering the awards in the cases cited, I find that the award of Kshs. 700000 is excessive. I set aside the said award and substitute it with an award of Kshs. 500,000. The appellant did not challenge the award on special damages and future medical expenses. 12. Final orders; Judgment on liability is 50:50. The award on general damages is set aside and substituted with an award of Kshs. 500,000/-. Each party to bear its own cost. Orders accordingly. DATED, SIGNED AND DELIVERED AT BUNGOMA ON THE 8TH OCTOBER, 2025. ......................................................... R. E. OUGO JUDGE In the presence of : Appellant - Absent Mr. Shikhu - for the Respondent Wilkister - C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16486/eng@2025-10-08 3

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