Joseph Mutiso Musau & 1 other v John Ndungu Simon Alias John Ndung’u Simon

4. 5. The matter proceeded for trial. Two witnesses testified for the Plaintiff while one witness testified for the Defendants. Judgment was entered in favour of the Plaintiff in the following terms:i. Liability 100% against the Defendants ii. General damages Kshs.1,000,000 iii. Future medical expenses Kshs.100,000 iv. Special damages Kshs.48, 260 v. Interest on general damages from the date of judgment vi. Interest on special damages from the date of filing suit. vii. Interest on future medical expenses from the date of filing the suit. viii. Costs of the suit to the plaintiff with interest from the date of judgment. Dissatisfied with the judgment, the Appellants lodged the appeal vide the Memorandum of Appeal dated 22nd May 2024. He set out the grounds:i. That the learned trial magistrate erred in law and fact by finding the Appellants 100% liable for the accident despite evidence that the Respondent was wholly or substantially to blame for the accident. ii. That the learned trial magistrate erred in law and fact by finding the Appellants 100% liable for the accident solely on the basis that the version of the evidence given by the Respondent was more believable without interrogating the evidence in totality and particularly on whether or not the Respondent contributed to the accident in any manner whatsoever. iii. That the learned trial magistrate award of General damages in the sum of KHz. 1,000,000 is excessive considering the injuries sustained by the Respondent and amounts to an erroneous estimate of damages payable in the circumstances of this matter. iv. That the judgment of the learned trial magistrate is against the law and weight of evidence on record. 6. The Appellant prayed that the Appeal be allowed with costs and the trial court’s findings on liability and the award of general damages be set aside and his court be pleased to make its own findings on liability and quantum of damages. 7. My duty as the first appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions. This principle was espoused by the Court of Appeal in the case of Kiilu & Another-v- Republic (2005) 1 KLR 174 where the Court of Appeal stated: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weight conflicting evidence and draw its own conclusions. It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion. It must itself make its own finding. Only then can it decide whether the Magistrate’s findings should be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 2

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supported. In doing so, it should make allowance for the fact that the trial court has had advantage of hearing and seeing the witnesses.” 8. The Appeal was canvassed by way of written submissions as directed by the court. The Appellants filed their submissions dated 31st January 2025 while the Respondent filed his submissions dated 25th March 2025. Both parties raised the twin issues of liability and quantum for determination. Analysis and determination 9. I have considered the trial record, grounds of appeal and the respective submissions of the parties as well as the authorities cited. The twin issues for my determination are liability and quantum of damages awarded by the trial court. i. Liability 10. Civil liability for road traffic accidents is founded on the tort of negligence, that every driver owes a duty of care to other road users pedestrians, passengers, and other motorists and must drive in a manner that a reasonable and prudent driver would in similar circumstances. (See Section 46, 47 and 49 of the Traffic Act Cap 403 of the Laws of Kenya) . 11. Under Section 107 of the Evidence Act (Cap 80), the burden of proving negligence lies on the Plaintiff. However, once the Plaintiff establishes facts from which negligence can reasonably be inferred, the evidential burden shifts to the Defendant. 12. For a plaintiff to succeed, they must prove on a balance of probabilities that the defendant owed them a duty of care, the defendant breached that duty through negligent conduct, the breach caused the accident and resulting injury and the plaintiff suffered damage as a result. This was well espoused in Statpack Industries Ltd v James Mbithi Munyao [2005] eKLR where Visram J (as he then) stated: “ It is trite law that the burden of proof of negligence lies on the plaintiff, but once he shows that the accident occurred in circumstances pointing to negligence, the burden shifts to the defendant to show otherwise.” 13. Where both parties contributed to the accident, the court apportions liability based on comparative fault. In Stapley v Gypsum Mines Ltd [1953] AC 663, it was stated: “ Negligence depends on the failure to take reasonable care, and where both parties fail in that regard, damages must be apportioned accordingly.” 14. The standard of proof remains the balance of probabilities, not beyond reasonable doubt. 15. No. XXX PC Douglas Murimi (PW1) of Chuka Traffic base testified that at around 1740 hours, the Plaintiff was riding motor cycle registration number KMCK 699A from Kiamuruki along ChukaEmbu road when on reaching the tarmac, motor vehicle registration number KCE 831E Toyota harrier which was being driven by Josiah Musyimi tried to overtake him. The motor vehicle hit him from behind causing the accident which as a result the plaintiff sustained a fracture on the right leg. 16. On cross examination, he stated that he had visited the scene and interviewed three witnesses. He maintained that the motor vehicle had improperly tried to overtake as the motor cycle was on the left side of the road and the road was not wide enough to overtake. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 3

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17. The Plaintiff who testified as PW2 stated that he had been hit by the driver of the motor vehicle. That the road was narrow and the driver ought not to have overtaken. He also stated that he was not carrying anything at the time of the accident. 18. DW1 the 2nd Defendant, adopted his witness statement dated 5th July 2023 as his evidence in chief. He averred that on 22nd July 2022 he was driving motor vehicle registration no. KCE 831E towards Chuka from Kiamuriuki. That motor cycle registration no. KMCK 699A heavily loaded with bananas was headed in the same direction. It was his statement that he carefully overtook the motorcycle and after a few metres he heard a bang from the back of his car. It was then that he noticed the rider of the motor cycle had fallen on the right side of the road. 19. DW1 stated that the rider was then rescued by good Samaritans and taken to the hospital. That later they returned with police officers to the scene of accident but the motor cycle was not there and the same was never presented for inspection. He blamed the rider of the motor cycle for the accident. 20. On cross examination he stated that the Plaintiff had hit him from behind. 21. In regard to liability, the Appellants submitted that the evidence of PW1 was hearsay as he did not witness the accident, did not have any investigation report, sketch map or photographic evidence indicating the motor cycle was hit from behind. They submitted that PW1’s evidence was of no evidential value and the trial court erred in applying the same 22. The Appellants relied on the case of Alfred Pengo Mamboleov Oserian Developmnet Co. Ltd & Another [2018] eKLR which in finding the evidence of an investigating officer to be of no evidential value the court stated; “ The investigating officer (PW4) told the court that he did not have a sketch map to show or indicate the point of impact. He too did not have the motor vehicle inspection report or photographs to confirm the areas damaged during the accident to the vehicle and the motor cycle… I find the investigating officer’s report to have been of no evidential value.” 23. The Appellants further submitted that, the Appellant in defence, testified that he overtook successfully but the motor cycle which was overloaded with bananas hit his motor vehicle from behind. They urged the court to set aside the trial court’s judgment on liability and apportion at 50:50. They relied on the case of Hussein Omar Farar v Lento Agencies [2006] eKLR where the Court of Appeal held that where the is no concrete evidence to determine who is to blame, liability should be apportioned equally. 24. The Respondent on his part submitted that in proving liability, he was required to prove direct or beneficial ownership of the motor vehicle; actual occurrence of the accident, and; blameworthiness of the parties. 25. On direct or beneficial ownership of the motor vehicle, it was his submissions that by a copy of records from the registrar of motor vehicle produced as PEX 14 shows that the Appellant was the owner of the motor vehicle as per Section 8 of the Traffic Act. That mere denial does not prove to the contrary. He relied on the case of Ezekiel Ajwala Otin & Another v C.M Motors Ltd [2012] eKLR where the court held that mere denial or approval in a pleading does not constitute evidence. 26. The Respondent submitted that the testimony and evidence of the Plaintiff thus is uncontroverted. It was submitted that PW1 who produced the Police abstract as PEX 10 and the respondent produced the duplicate certificate of insurance as PEX 13, both show that Josia Musyimi alia Musyimi Josia was the beneficial owner of the motor vehicle. That this evidence was not controverted. He relied on the case of Unleek Electrical Company Limited v Joseph Fanuel Alela. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 4

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27. Further, that from the police abstract, Josia Musyimi alias Musyimi Josia was the authorized driver of the motor vehicle. It was his submission that the evidence was not controverted. He placed his reliance on the Unleek case (Supra). Further, that Dw1 confirmed he was the authorised driver at the time of the accident. 28. I have gone through the record and find that the copy of record from the registrar of motor vehicles produced by the Plaintiff as PEX 14 indicates that Joseph Mutiso Musau (the 1st Appellant) as the owner of the motor vehicle. I find that the trial court rightly determined the same and therefore I have no reason to depart from the same. 29. On actual occurrence of the accident and how it occurred, it was submitted that PW1 confirmed that the accident occurred and that the 2nd Appellant was to be charged with careless driving contrary to Section 47(1) of the Traffic Act. That DW1 confirmed that an accident had occurred. It was the Respondent’s submissions that on a balance of probabilities, the accident occurred as pleaded by the Respondent. It is my finding that the accident did occur as it is not disputed by the parties. 30. On the accident, it was the Respondent’s submission that the Appellant was to blame for the accident for hitting the motor cycle from the rear. That the 2nd Appellant had a duty of care to ensure that a Collison does not occur between the vehicle and the Respondent in front. He relied on the case of Wangari v Nkaru [2004] eKLR. Further, that it was clear the 2nd Appellant did nothing to avoid the accident. He cited the case of Agness Akinyi Okeyo v Marie Stopes Kenya [2004] eKLR where the court found a driver who had done nothing to avoid the accident 100% liable for the ensuing accident. In addition, that the Appellant did not adduce any evidence to prove the particulars of negligence. 31. It was his further submission that lack of conviction on a criminal charge did not absolve a driver from liability in a civil claim. He relied on the case of Philip Keipto Chemwolo & Mumias Sugar Co. Ltd v Augustine Kubende [1982-88] KAR the Court of Appeal rendered itself as follows; “ It was not for the learned judge to read proceedings in the traffic case as if the evidence recorded there was the final position in the case. Not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well-known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness. It was therefore premature to come to the conclusion that not even a prima facie case of contributory negligence could be established. It would have been right to have held that there was some evidence upon which a triable issue as to contributory negligence arose on the strength of the proceedings in the traffic case… it was correct for the learned judge to refer to the conviction because section 47A of the Evidence Act (cap 80) declares that where a final judgment of a competent court in criminal proceedings has declared any person to be guilty of a criminal offence, after the expiry of the time limited for appeal, judgment shall be taken as conclusive evidence that the person so convicted was guilty of that offence. But that does not matter, because it may also be that the other party was guilty of carelessness, and were and despite the other party’s conviction, the issue of contributory negligence may still be alive if the facts warrant it. In the present case there was a triable issue in contributory negligence which would affect the quantum of damages.” 32. Further, in the case of Ann Mukami Muchiri v David Kariuki Mundia [2008] eKLR the court stated:“ Finally, I would wish to touch briefly on the learned magistrate’s reliance on the acquittal of the Respondent in the traffic case resulting to the accident to fortify his position that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 5

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Respondent was not to blame for the accident. First and foremost, the learned magistrate ought to know and he knew that the standard of proof in criminal matters is not the same as in civil proceedings. Whereas in criminal proceedings the standard of proof is beyond reasonable doubt, in civil proceedings, it is on a balance of probability. It is therefore much lower. The mere fact that the respondent was acquitted in the traffic case does not necessarily mean he cannot be held liable in subsequent civil proceedings…” 33. From the evidence on record, it shows that the Respondent was hit from the rear by the driver of the motor vehicle. The trial court in its judgment made a finding that the 2nd Defendant owed a duty of care to other road users including the Plaintiff. It is my finding that the trial court correctly made that determination thus the same is upheld. 34. In determining the issue of liability, the trial court, considered the evidence of PW1 who had not witnessed the accident but had interviewed members of the of the public. The trial court took the view that the evidence of PW1 was corroborated by that of PW2 being one of the people he had interviewed. Further, the trial court observed that the evidence of DW1 that the motor cycle hit the motor vehicle from the behind was not corroborated thus the plaintiff’s version of the story had more truth than that of the Defendant. 35. While PW1 was not an eye witness, his evidence, though secondary, was corroborated by PW2, the victim of the accident, whose testimony was clear and consistent. The investigating officer stated that he visited the scene, interviewed witnesses, and established that the vehicle attempted to overtake improperly on a narrow road. 36. In Equator Distributors v Joel Muriu & 3 Others [2018] KECA 53 (KLR) the Court of Appeal rendered itself as follows: “ A police sketch of a scene of accident depicts the overall layout of the location and the relationship of evidentiary items to the surroundings. … On probative value to be given to a police sketch map, we are aware that a police sketch map for a road traffic accident is prepared after the event, it is not an eyewitness account. However, it carries some probative value. The sketch map is not binding on the trial court and it is for the trial court to establish facts from all the evidence on record. A police sketch map is just but an item of evidence to be considered.” 37. The Appellants’ version, that the motorcycle hit the vehicle from behind, was not supported by any independent witness or physical evidence. No inspection report was produced to substantiate the claim that the motorcycle caused the collision. The Respondent’s version is more probable, given that the collision occurred on a narrow road during an overtaking attempt. The principle is well established that a driver attempting to overtake bears a higher duty of care to ensure that the road is clear and that overtaking can be completed safely. 38. The Appellants’ argument that PW1’s evidence was hearsay fails when considered alongside PW2’s direct testimony. Under Section 63 of the Evidence Act, oral evidence must be direct; however, corroborative hearsay evidence from an investigating officer is permissible to support an eyewitness account if it is derived from official investigation. 39. Further, the Appellants did not discharge the burden under Section 107 of the Evidence Act, which places the onus on a party asserting contributory negligence to prove it. The allegation that the motorcycle was overloaded with bananas was not supported by any evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 6

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40. The court in Agnes Akinyi Okeyo v Marie Stopes Kenya (supra) held that a driver who fails to take evasive action or maintain proper control to avoid a collision bears full responsibility. 41. The Appellants invited this court to apportion liability at 50:50 citing Hussein Omar Farar v Lento Agencies (2006) eKLR. That principle applies where evidence is inconclusive. In the present case, the Respondent’s account was consistent and supported by official investigation, while the Appellants’ version lacked corroboration. 42. Accordingly, there is no basis for apportioning contributory negligence. The trial court correctly held the Appellants 100% liable. Quantum 43. The general rule is that the assessment of damages is a matter of judicial discretion. The law is settled that an appellate court will rarely interfere with the exercise of such discretion unless it is shown that the trial court proceeded on a wrong principle, misapprehended the evidence, or made an award that is so inordinately high or low as to represent an erroneous estimate of the damage suffered. 44. This principle was clearly enunciated by the Court of Appeal in Butt v Khan [1982–88] 1 KAR 1, where the court of appeal held: “ An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the trial court proceeded on wrong principles, or that it misapprehended the evidence in some material respect, or took into account an irrelevant factor, or left out a relevant one.” 45. The same position was reaffirmed in Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, where the Court of Appeal emphasized that: “ The assessment of damages is a matter of discretion by the trial court and an appellate court will be slow to interfere unless it is shown that the trial court acted on a wrong principle of law, or the award is inordinately high or low.” 46. In the present case, the injuries sustained by PW2 were not in dispute. He suffered a tender and swollen right leg with lacerated wounds, an open fracture of the tibia and fibula, and a deep open wound on the midshaft of the right tibia. These injuries were corroborated by the medical report dated 5th September 2022 prepared by Dr. Mwandiki, which report was produced by consent of the parties. 47. The Appellants contended that the award of Kshs. 1,000,000 in general damages was inordinately high and not supported by precedent. They urged the court to be guided by the caution expressed in Hassan v Nathan Mwangi Kamau Transporters & 5 Others (Nairobi CA No. 123 of 1985) where it was held that: “ Inordinately high awards will lead to monstrously high premiums for insurance of all sorts and it is to be avoided for the sake of everyone in the country… courts of first instance are prone to compensate generously and it would be absurd to shut one’s eyes to the fact that, because, in these days of third party and personal insurance, loss almost always falls on a large financial corporation, there may be a tendency to extravagance. As large sums are awarded, so premiums for insurance rise higher and higher.” 48. The Appellants therefore argued that the trial court failed to observe the doctrine of stare decisis and ratio decidendi, and relied on Kiama v Mutiso [2024] KEHC 5135 (KLR) where the High Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 7

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reduced an award of Kshs. 700,000 to Kshs. 400,000 for a fracture of the upper third of the tibia that healed without disability, and Gladys Lyaka Mwombe v Francis Namatasi & 2 Others [2019] eKLR, where the court upheld an award of Kshs. 300,000 for comparable fractures. 49. Conversely, the Respondent maintained that his injuries were more severe and comparable to the authorities he cited, including: i. Stephen Wanderi Kamau & Another v Gladys Wanjiku Kungu, Nairobi Civil Appeal No. 81 of 2005 where the Respondent was awarded Kshs. 600,000 for compound fractures of the tibia and fibula with 20% permanent disability. ii. Ahmed Mohamed v Abdulhafidh Mohamed Banragah, Mombasa HCCC No. 319 of 2001 – award of Kshs. 750,000 for compound fractures of the tibia, fibula, and femur. iii. Alphonce Muli Nzuki v Brian Charles Ochoudho [2014] eKLR – award of Kshs. 800,000 for compound comminuted fracture of the tibia and fibula and degloving injury. iv. Joseph Musee Mua v Julius Mbogo Muigi & 3 Others [2013] eKLR – award of Kshs. 1,300,000 for fractures of the tibia and fibula and chest injury with permanent incapacity of 5%. v. Mwaura Muiruri v Suera Flowers Limited & Another [2014] eKLR – award of Kshs. 1,450,000 for compound fractures of the right tibia and fibula, comminuted fractures of the humerus, and soft tissue injuries. 50. The trial court in its judgment considered the authorities cited by both parties and found that they were not entirely comparable. The court then exercised its discretion, guided by the nature and severity of the injuries, to award Kshs. 1,000,000 in general damages. 51. Upon careful re-evaluation of the medical evidence and the comparable authorities, this Court is persuaded that the injuries sustained by the Respondent were serious but not to the extent of justifying an award on the higher end of the spectrum. The Respondent suffered an open fracture of the tibia and fibula with deep lacerations, but there was no evidence of permanent incapacity or long-term disability. 52. Guided by the principles in Butt v Khan (supra) and Denshire Muteti Wambua (supra, I find that the award of Kshs. 1,000,000 was slightly excessive. In my view, an award of Kshs. 700,000 would fairly compensate the Respondent for pain, suffering and loss of amenities. 53. In so finding, I am persuaded by the following authorities where in my view the injuries were similar to those in the present case: - 54. i. Kerandi & Another v Okong’o [2024] KEHC 3823 (KLR) where the Respondent sustained fractures of the ribs, tibia and fibula and dislocation of the wrist and was awarded Kshs. 450,000 by the Appellate court. ii. Sammy Mugo Kinyanjui & Another v Kairo Thuo [2017] eKLR where the Respondent 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 the court reduced the award of Kshs. 1,000,000 to Kshs. 600,000. Accordingly, I find merit in the appeal on quantum. The award of Kshs.1,000,000 in general damages by the trial court is hereby set aside and substituted with an award of Kshs.700,000. The award on special damages of Kshs.48,260, future medical expenses of Kshs.100,000 and costs remain undisturbed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 8

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55. Consequently, the appeal partially succeeds to the extent of quantum. 56. Each party shall bear their own costs of the appeal. JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 25TH DAY OF NOVEMBER, 2025. ........................ R. LAGAT-KORIR JUDGE Judgment delivered in the presence of Mr. Ndungu for the Respondent and N/A for the Appellants. Muriuki Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18216/eng@2025-11-25 9

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