Steve Hanningtone Onyango & 1 other v Martin Irungu Wanjiku

respondent for the accident claiming that it was due to carelessness or negligence on his part. They also denied that the 1st appellant was vicariously liable for the acts of his driver, agent, servant or employee. They equally denied that the doctrine of res ipsa loquitor was applicable in the circumstances of the case. 6. The respondent was the only witness who testified at trial. The appellants did not offer a witness to testify in defence. 7. After trial the learned trial magistrate in her judgment found the appellants wholly liable for the accident and awarded the respondent general damages KShs 650,000/=, special damages KShs 8,800/ = together with costs and interest. 8. The appellants were dissatisfied with that decision on liability and general damages and have filed the present appeal based on four grounds as follows: a. that the learned trial magistrate erred in law and in fact by apportioning liability at 100% against the appellants considering the evidence tendered by the 1st appellant during the hearing. b. that the learned trial magistrate erred in law and in fact by awarding the plaintiff general damages which were inordinately high considering the nature of injuries sustained. c. that the learned trial magistrate erred in law and in fact by failing to appreciate that the plaintiff had substantially recovered from his injuries. d. that the learned trial magistrate erred in law and in fact by departing from the convectional awards for similar injuries. 9. The appellants therefore pray for this court to allow the appeal, set aside and/or vary the judgment of the trial court delivered on 5th December 2023 and reassess the apportionment of liability and assessment of damages. 10. The appeal was canvassed by way of written submissions filed by both parties. 11. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424. 12. The trial was conducted on 4th September 2023. At the trial the respondent testified as PW 1 and did not call any other witness. He adopted his witness statement as his evidence in chief. His witness statement was basically a reiteration of his averments in the plaint. His case was that he was riding a motor cycle registration number KMFJ 674L at the junction of Juja and Chai road when the 2nd defendant driving motor vehicle registration number KCW 858N owned by the 1st defendant negligently and carelessly drove the said vehicle at a very high speed that it lost control which then collided with the motorcycle thereby causing the accident and severe injuries to him namely fracture of the mid-shaft tibia and fibula. 13. He also adopted the documents as listed in his list dated 19th August 2021. The documents were: 1). Medical report by Dr. Cyprianus Okoth Okere dated 4th August 2021 and the accompanying receipt for payment; 2). General outpatient record from Kiambu Level 5 hospital; 3). Receipts in support of special damages; 4). Copy of records and receipts; 5). Copy of demand letter and notice to insurers; 6). P3 form; 7). Police abstract. He was then cross-examined by learned counsel for the appellants who did not have many issues to raise with him. The only issue raised by the defence in cross-examination with regard to how the accident occurred was that no one had been blamed for the accident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 2

page 2 of 8

14. The defence case was closed without calling any witness save that the medical report of Dr. Wambugu P.M. dated 17th April 2023 was produced in evidence for the appellants by consent of the parties. 15. Learned counsel for the appellant, in his submissions, outlined the issues for determination as follows: 16. a. Whether the trial court wrongly assigned liability at 100% to the appellants failing to take into account the contributory negligence of the respondent. b. Whether the awarded general damages do not reflect the nature of the injuries sustained by the respondent, departing from conventional awards for similar injuries. c. Whether the learned magistrate failed to account for the respondent’s significant recovery from the injuries sustained. d. Whether the magistrate neglected to recognize that the respondent had a pre-existing injury which played a role in the severity of the current condition. e. Whether the trial court’s assessment of both general and special damages was flawed leading to an unjust and excessive award. The third and fourth issues are not covered in the grounds of appeal as set out in the memorandum. This is against the provisions of Order 42 Rule 4 and cannot be considered by this court. The said rule provides that: “ The appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.” 17. As provided in the cited rule, I find that in urging these two grounds, the appellants have not afforded the respondent an opportunity of contesting the case on those grounds. 18. The rest of the grounds are considered in the analysis that follows. 19. Learned counsel for the respondent in his submissions supports the findings and conclusions of the learned trial magistrate. He submits the issues for determination to be: a. Whether the trial court erred in its findings on liability. b. Whether the trial court erred in its findings on general damages. c. The prayers that this court should grant. 20. The issue for determination from both the appellants and the respondent can be summed up as, whether or not the learned trial magistrate acted on wrong principles in arriving at her impugned decision. 21. The first ground of appeal is that the learned magistrate was wrong in her decision to apportion liability against the appellants wholly considering the evidence tendered by the 1st appellant during the hearing. 22. As stated above, the defence case was closed without calling any witness save that the medical report of Dr. Wambugu P.M. dated 17th April 2023 was produced in evidence for the appellants by consent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 3

page 3 of 8

of the parties. The learned trial magistrate found in her judgment that the evidence of the respondent had not been rebutted. 23. Consequently, the first ground of appeal that the trial court failed to consider the evidence of the 1st appellant is unfounded in view of the fact that the 1st appellant did not testify at the trial. Consequently, that ground is dismissed as without merit. 24. The learned trial magistrate however also found that the respondent did not tell the court what measures he took to avoid the accident. That is an indication, and which I do not find was correct, that she was of the feeling that the respondent could not escape liability fully even as his evidence on how the accident occurred had not been rebutted. The respondent gave his evidence on how the accident occurred and why blame should be placed on the appellants. His discharged the legal burden under section 107 of the Evidence Act (Cap. 80) Laws of Kenya. The evidential burden of proof that the respondent was partly to blame for the accident then shifted to the appellants as provided for under section 109 of the Evidence Act. By failing to call any evidence in that regard, they failed to discharge that evidential burden. 25. The learned trial magistrate went ahead to rely on the doctrine of res ipsa loquitor and hold the appellants wholly liable for the accident. I do not think the application of that doctrine in the circumstances of this case was appropriate. Many plaintiffs plead the doctrine as a matter of course, not because their case calls for the application of the doctrine but perhaps just in a bid to cast their net wider on the issue of liability. It is for the court to determine whether the doctrine is applicable to the facts of the case or not. 26. It was not a case where the court was called upon to infer that the circumstances of the case inevitably pointed to the driver of the accident vehicle being negligent. Rather, it was whether the learned trial magistrate believed the evidence tendered by the respondent. 27. In the case of Masembe v. Sugar Corporation and Another [2002] 2 EA 434, cited by the learned trial magistrate in her judgment it was held that;“ an apportionment of liability made by a Trial Court will not be interfered with on appeal save in exceptional cases as where there is some error of principle or the apportionment is manifestly erroneous.” 28. In the present case, I have considered the circumstances of the case. It was the respondent’s evidence that the 2nd appellant was speeding, he lost control of the vehicle and caused it to collide into his motor cycle. As found by the learned trial magistrate, that evidence was not challenged by the defence. 29. Learned counsel for the appellants submits that drivers on the road bear a shared responsibility and therefore when an accident occurs, they should share liability and none be made to shoulder it alone. That this is inherent in road usage. It is true that each driver owes a duty of care to the other and to other road users to carefully drive on the road so as not to cause an accident. In the present case, it is the respondent’s case that this was what he did and that the appellant’s driver failed to observe his duty of care towards him. That was the evidence that was not challenged. If the appellants had testified, or if in cross-examination it had been shown that the respondent was to blame to a certain extent, that would have been found so. However, the court would not proceed to apportion liability where there is no iota of evidence to do so. The Court of Appeal emphasized in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) that legal causation must be determined by common sense and an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 4

page 4 of 8

analysis of the facts at hand. The Court of Appeal was citing with approval the English case of Stapley v Gypsum Mines Limited [1953] AC 663 at pg 668, where it was stated that: “ To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection in a court of law as this question must be decided as a properly instructed and reasonable jury would decide it ...” and “...The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault but that if one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the fault of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.” 30. There was no reason for the trial not to believe the respondent and consequently he proved his case on liability on a balance of probability that the 2nd appellant as the driver of the accident vehicle was wholly to blame for the accident and the owner, the 1st appellant was vicariously liable. 31. Learned counsel for the appellant has submitted issues of fact that did not arise even at the trial such as that the accident occurred at night at 8.30 p.m. and that the respondent did not provide any evidence of the safety precautions he had taken while riding his motor cycle, that he disregarded traffic laws. There was no evidence pointing to such issues even in cross-examination. 32. Learned counsel submits that the court is faced with two plausible narratives of how the accident occurred. I think this submission was lifted from another case and not the present one as there were no two narratives of how the accident occurred in this case. There was only one version, that offered by the respondent. 33. Learned counsel submits that the police abstract did not assign blame to either party and so there is lack of conclusive evidence. That is not correct. The respondent offered his evidence which was not rebutted. The police abstract simply indicated that the case was pending under investigation (PUI) as police are wont to write in many police abstracts. It does not mean that there was no evidence pointing to who was to blame for the accident. 34. As stated, the appellants did not tender any evidence at the trial. The consequences of a party failing to adduce evidence were restated in the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 cited by learned counsel for the respondent where it was held that: “ Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 5

page 5 of 8

35. The evidence of the respondent thus remained unchallenged as was held by the Court of Appeal in the case of John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR, follows: “ The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….” 36. In evaluating that evidence, the learned trial magistrate found that since the respondent’s evidence had remained uncontroverted then he was entitled to succeed in his claim. She therefore found the driver wholly liable for the accident and the owner of the vehicle vicariously liable. Based on the law as enunciated in the above decisions, I find no reason to fault the learned magistrate’s finding on liability and the same is affirmed. 37. The injuries sustained by the respondent are not contested. They were fracture of the right midshaft tibia and fibula. 38. On the evidence tendered, the learned trial magistrate awarded the plaintiff KShs 650,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellants to disturb that award. 39. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, 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 the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.” 40. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows: “ 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 judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 41. The appellants contend that the award of general damages by the trial court was inordinately high and that the court failed to follow conventional awards for similar injuries. Learned counsel for the appellant has cited the case of Vincent Mbogholi v Harrison Tunje Chilyalya [2017] KEHC 7765 (KLR) where the respondent suffered a fracture of the left tibia leg bone (medial malleolus), blunt https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 6

page 6 of 8

object injury to the chest and left lower limb, bruises on the left forearm, right foot and right big toe as one that bears comparable injuries and therefore a good to the assessment of general damages herein. In that case, on appeal the High Court in 2017 sustained the award of KShs 500,000/= general damages awarded by the trial court. I do not know where learned counsel for the appellant obtained the figure of KShs 400,000/= indicated in his submissions. 42. Learned counsel also cited the case of Maselus Eric Atieno v Unitel Services Limited [2017] KEHC 8287 (KLR) which was decided in 2017 for an accident that occurred in 2012, some thirteen years ago and the High Court found that the award of KShs 250,000/= for fractures of the right leg tibia/fibula bones among other minor injuries was not inordinately low. 43. The injuries in the cited cases are largely similar and comparable to those suffered by the respondent herein. 44. Faced with these two decisions which seem to award varied sums for comparably similar injuries, any court, including the trial court herein which relied on them, finding the decisions cited by the respondent not applicable, would have to choose to rely on one rather than the other. One common factor to note though is that both cases are fairly old, being over eight years old. Relying on the case of Vincent Mbogholi where the higher award of KShs 500,000/= was made, I do not think one can fault the learned trial magistrate for the award she made. 45. In considering whether the learned trial magistrate was in error in her assessment of damages, I have in mind the position in law that in assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable awards but recalling that no two cases are exactly alike as held by the Court of Appeal in the case of Stanley Maore –vs- Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that: “ Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 46. I have read through the judgment of the learned trial magistrate and I note that the learned trial magistrate outlined and considered the decisions cited to her by both counsels and made her assessment of damages. She also gave proper reasons for her arriving at the quantum of damages awarded. I do find that the assessment of damages by the trial court is reasonable and cannot be held to be excessive. Granted that if this court was the one considering the case at the trial stage, it would have awarded slightly lower damages for the injury, I must remember that it is not about what this court would have done in the circumstances but rather whether the learned trial magistrate followed the correct principles in making the award. I have found that she did. 47. Learned counsel for the appellants has submitted that the learned trial magistrate failed to take into account the fact that the respondent had suffered another fracture before. But there is no indication that that earlier fracture contributed to the accident or how it contributed to the assessment of damages thereby making them higher than they ought to be. As submitted by learned counsel, the learned trial magistrate simply did not take it into account and so, I find that the same did not influence her assessment of general damages. 48. In the final analysis, I find that there are no sufficient grounds to upset the findings of the trial court on liability and the award of quantum of general damages. Equally, the award of special damages by the trial court remains as the same was not challenged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 7

page 7 of 8

49. Consequently, I find that the appeal lacks merit and is hereby dismissed with costs to the respondent. DELIVERED, DATED AND SIGNED ON THE VIRTUAL PLATFORM, TEAMS THIS 7TH DAY OF NOVEMBER, 2025. ANDAYI W. F. JUDGE In the presence of: Wariara (Ms) for the Appellants. Ndiege (Ms) h/b for Waiganjo for the Respondent. Ummu: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18308/eng@2025-11-07 8

page 8 of 8