Mogo Auto Limited & 1 other v Israel Mayianda Moriasi

of appeal, and end up arguing only two issues. This is anathema the provisions of Order 42 Rule 1 of the Civil Procedure Rules, which posits as doth: “ Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively. 3. The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: “ We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented: “We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…” 4. Repetitive grounds of appeal tend to cloud the key issue in dispute for determination by the Court. The same issue was addressed succinctly court of appeal in the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR as follows: “ Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated: “The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.” 5. The grounds are thus ancillary, repetitive, prolixious and a waste of judicial time. This court will have to deal with whether the magistrate erred in finding the Appellants 100% liable and in the award of the damages. The only two issues are whether the court misapprehended evidence in its finding on liability and whether the award of damages was inordinately high. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 2

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Pleadings 6. 7. The Plaint dated 4.11.2021 claimed damages arising from injuries caused through an accident that occurred on 11.8.2021 involving the Respondent and the Appellants’ motor vehicle registration number KCX 623Q that occurred when the Respondent was walking along Tabaka-Ikoba Road. The motor vehicle is said to have veered off the road and hit the Respondent. The Respondent pleaded particulars of negligence om the part of the Appellants and also that he suffered the following injuries: i. Left humerus fracture ii. Right wrist dislocation iii. Chest contusion iv. Blunt trauma to the neck v. Bruises on the face vi. Bruises to the right lower limb vii. Bruises to the left lower limb The Appellants entered appearance and filed defence dated 25.1.2022 denying liability and injuries and blaming the Respondent for the accident. Evidence 8. At the hearing, PW1 was No. 70035 PC Alfred Komen of Gucha Traffic Base. He produced the police abstract. it was his case that the motorvehicle was coming from Kisii direction towards Ogembo and the driver was avowing another motorvehicle when he swerved hitting 3 pedestrians including the Respondent. on cross examination, it was his case that he did not have a sketch plan. Further, he testified that if the motorvehicle had not swerved, there was likely a head on collision with the other motorvehicle 9. PW2 was the Respondent. It was his account that he was walking along the way when the motorvehicle hit him and others from behind. he produced the documents in his list of 4.11.2021 to support his case. He testified that he had metal fixation and had not healed well. On cross examination, he testified that it was 9.30 pm and he did nit have a reflective jacket. He did nit see any other motorvehicle alleged to have been avoided. 10. PW3 was Dr. Morebu. He produced his medical report dated 15.10.2021. He confirmed the injuries as pleaded. he assessed permanent disability at 10% and the cost of removing implants at Ksh. 120,000/=. 11. DW1 was Abel Nyamweya Michira, the 2nd Appellant. He relied on his witness statement. The accident occurred on 11.8.2021 at 8.00pm. While he was driving, a truck came into his lane. It was a steep place. It is the truck that caused him to swerve and he hit a pedestrian. He was not negligent and he did not cause the accident. 12. On cross examination it was his conformed case that he had not brought in third parties to the suit. Submissions 13. The Appellant filed submissions dated 25.9.2025. It was submitted that the Respondent did not prove liability and the lower court so awarded 100% liability in favour of the Respondent in error. They https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 3

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submitted that the Respondent was to blame for the accident. Reliance was placed on Section Act 107,108 ,109 and 112 of the Evidence Act. 14. It was also submitted on liability that there could be no liability without fault of the 2nd Appellant. They cited Kiema Mutuku v Kenya Hauling Services Limited 1991 2 KAR 258. 15. The Appellant submitted that it was proved that there was an oncoming motorvehicle which caused the 2nd Appellant to swerve to avoid a collision. On the damages, it was submitted that Ksh. 500,000/ = was sufficient. They cited Kamau & nother v Otieno (2023) eKLR based on which it was submitted that Ksh. 500,000/= was awarded for a plaintiff who suffered fracture of the humerus and fracture of the right clavicle among soft tissue injuries. 16. On future medical expenses, the Appellants urged this court to find degree of permanent disability at 10% as proposed by the second medical examination. In this regard, they submitted that Ksh. 120,000/ = was adequate compensation. 17. On special damages, it was submitted that the same was proper and should be upheld. Analysis 18. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 19. The jurisdiction for this court to review the evidence in the lower court should this be done but with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows: “ It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 20. The duty of this court in the appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: “ ...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..." 21. On liability, the Respondent had the duty to prove her case against the Appellant. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 4

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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.” 22. The balance of probabilities is also about what is likely to have happened than the other. In Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 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…..” 23. Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. 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.” 24. The Respondent’s evidence was that he was walking beside the road with other pedestrians. The Respondent came out of the road and hit him with two other pedestrians. The Appellants conceded to swerving out of the road but alluded the cause to an oncoming truck and that the swerve was calculated to avoid a head on collision. There could be no liability against an alleged third party driving the alleged truck who was not party to the proceedings as no fault was established against him. 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. 25. It was the duty of the Appellants to take-out Third-Party Proceedings against a party he wished to be take up liability. The Appellants did not issue a Third-Party Notice. I have no basis to interfere with the reasoning of the lower court. The Appellants ought to have invoked the provisions of Order 1 Rule 15 of the Civil Procedure Rules as follows: (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)— (a) that he is entitled to contribution or indemnity; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 5

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26. (b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them The Defence by the Appellants did not allude to the said third party. In the case of In Kenya Commercial Bank v Suntra Investment Bank Ltd (2015) eKLR, observed that:“ The defence does not even allude to the said third party; the issue has just propped up in the submissions by the Defendant. In any case, the said third party is not a party in the suit and no claim has been laid against it by the Plaintiff or the Defendant. In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under (Order 1 rule 15 - 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules.” 27. Due to failure to join a Third Party for the alleged truck, there were no directions on apportionment of liability. It was thus the duty of the Appellants to prove contributory negligence which in my view they failed. Contributory negligence could not be shelved to a third party who was not a party to the proceedings and the presumption remained that the Appellant was the registered owner of the motorvehicle whose driver was an agent of the Appellant. In the case of MacDrugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that; “ In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”. 28. The evidence of the Appellants was not inconsistent with the 2nd Appellant’s negligence for the accident. This is the rule in Embu Road Services V Riimi (1968) EA22 and 25 Mzuri Muhhidin V Nazzar Bin Seif (1961) EA 201, Menezes Stylianicers Ltd CA No.46 of 1962 in which the courts held inter alia; “ Where the circumstances of the accident gave rise to the inference of negligence, the defendant, in order to escape liability, has to show that there was a probable cause of the accident, which does not create negligence or that the explanation for the accident was consistent only with absence of negligence. The essential point in this case, therefore is a question of fact, that is whether the explanation given by the Respondent shows that the probable cause of the accident was not due to his negligence or that it was consistent only with absence of negligence”. See also Odungas Digest on Civil case law and Procedure 3rd Edition Vol 7 page 5789 at paragraph (D). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 6

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29. It is only after the alleged third party was served and failed to enter appearance that directions on judgement against them would apply. It is this rationale of the law that is imbedded in Order 1 Rule 17 of the Civil Procedure Rules as follows: If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice.. 30. Therefore, the Respondents proved want of care on the part of the driver of the accident motorvehicle. The 2nd Appellant for which the 1st Appellant was clearly vicariously liable. I am in consonance with the reasoning of the Court in the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR where Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, and held as follows: “ In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said: “……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 31. I therefore find no basis upon which to fault the finding of the lower court on liability. I uphold liability of 100% against the Appellants. 32. On quantum, the Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: “ The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages. 33. 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. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 7

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Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: “ The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…” 34. 35. Therefore, where damages are proved to be at large, they must be commensurate with similar injuries. The injuries that the Respondent suffered were as follows: i. Left humerus fracture ii. Right wrist dislocation iii. Chest contusion iv. Blunt trauma to the neck v. Bruises on the face vi. Bruises to the right lower limb vii. Bruises to the left lower limb It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that: …but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…..” 36. With the above guide, if the Award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. 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. 37. The Appellants submitted that their medical report, the second medical report was the accurate report and not the Respondent’s medical report. On expert evidence, as was held in Shah and Another vs. Shah and Others [2003] 1 EA 290: “ The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 8

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38. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: “ … such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 39. Furthermore, in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that: “ 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." 40. I am inclined to believe the medical report by the Respondent because it was tested in cross examination. Therefore, I consider the injuries pleaded as the injuries that were proved. 41. In Alphonza Wothaya Warutu & another v Joseph Muema [2017] eKLR, the Plaintiff sustained injuries of deep cut wound on the forehead, compound fracture on the midshaft of the right Humerus, compound fracture of the right tibia and deep cut wound on the right lower leg and the court upheld an award of Kshs. 800,000 as general damages. 42. In the case of Philip Mwago v Lilian Njeri Thuo [2019] eKLR, the High Court sitting on appeal upheld an award of Kshs. 500,000/= general damages for a claimant who had suffered a broken humerus with 8% residual functional disability. 43. Further, in the case of the respondent suffered a fracture of the right humerus arm bone (mid 1/3), a deep cut on the right eye, abrasion on the head and a blunt injury to the right shoulder and chest. The trial court awarded general damages of Kshs. 450,000/- which was upheld on Appeal to this Court. 44. The injuries that the Respondent suffered are largely similar to the above authorities. Fairness 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” 45. 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; - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 9

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1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. 2) The award should be commensurable with the injuries sustained. 3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. 4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. 5) The awards should not be inordinately low or high. 46. Based on the above principles and similar fact cases, the award of Ksh. 800,000 for general damages was high but not inordinately high to warrant interference. I say so considering the lapse of time when the said cases were decided which brings in inflation and the fluctuating strength of the Ksh. 47. On future medical expenses, 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. 48. 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 done. 49. I uphold the finding of the lower court on both liability and quantum and dismiss the appeal. Determination 50. The upshot of the foregoing is that I make the following orders: a. The Appeal lacks merit and is dismissed. b. The Respondent shall have costs assessed at Ksh. 105,000/-. c. 30 days stay of execution. d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF NOVEMBER, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 10

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KIZITO MAGARE JUDGE In The Presence Of: E.N Omandi for the Respondent Mr. Ojong’a for the Appellant Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17158/eng@2025-11-20 11

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