Alex Anubi Ombeva & 1 other v John Kavoi Muli

for the accident with the 1st appellant as the registered owner of the vehicle and the 2nd respondent as the driver at the material time. 4. The respondent’s case was for general damages for pain, suffering and loss of amenities, special damages of KShs 169,704/=, costs of the suit and interest thereon. 5. The 1st and 2nd appellants entered appearance and filed a common statement of defence dated 2nd December 2020 and denied the respondent’s claim in toto. In the alternative they blamed the respondent for the accident alleging that he was either wholly or substantially to blame due to actions or omissions on his part. They equally denied that the doctrine of res ipsa loquitor was applicable in the circumstances of the case. 6. The respondent testified at the trial and the appellants in defence made available one witness DW 1, Richard Muloma, the 2nd appellant. 7. After trial the learned trial magistrate in her judgment found the appellants wholly liable for the accident and awarded the respondent general damages of KShs 950,000/=, special damages KShs 169,704/= together with costs and interest. 8. The appellants were dissatisfied with that decision on liability and assessment of damages and have filed the present appeal based on seven grounds that are argumentative. I summarize the grounds as follows: a. that the learned trial magistrate erred in law and in fact by apportioning liability at 100% against the appellants instead of apportioning the liability between the parties while relying only on the evidence of the respondent and without considering the evidence tendered by the 2nd appellant during the hearing. b. that the learned trial magistrate erred in law and in fact by awarding the respondent general damages of KShs 950,000/= which were inordinately high considering the nature of injuries sustained without considering awards for similar injuries in prior decisions. c. that the learned trial magistrate erred in law and in fact by awarding the respondent special damages of KShs 169,704/= when the same had not been proved. d. That the learned trial magistrate rendered a judgment that did not conform to the requirements of Order 21 Rules 4 and 5 of the Civil Procedure Rules setting out the issues for determination, the findings of the court on each of the issues and the reasons for the decision. 9. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order dismissing the respondent’s suit against the appellants with costs. 10. In the alternative, this court to adjust the findings on liability and assessment of damages to reflect the evidence and the law as per the record. 11. The appeal was canvassed by way of written submissions filed by both parties. 12. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze 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. 13. The trial was conducted on 12th July 2023 when the respondent testified and on 18th September 2023 when Richard Muloma for the appellants testified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 2

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14. At the trial the respondent testified as PW 1 and did not call any other witness. He adopted his witness statement dated 14th July 2020 as his evidence in chief. His case was that he was riding a motor cycle registration number KMDE 189F on the left lane along Moi avenue heading towards Njugu lane junction. There are three lanes on that road. Motor vehicle registration number KCJ 371P which was on the same road on the extreme right lane of the respondent and heading in the same direction suddenly without indication or warning changed lanes to the left lane where the respondent was riding thereby knocking him down. He sustained injuries to his right leg. There was a police officer nearby who directed the driver of the accident vehicle to ferry the respondent to Central Police station where the driver was arrested and detained. The police officer called an ambulance and the respondent was taken to Kenyatta National hospital for medical attention. He was admitted from 8th February 2020 until 25th March 2020 when he was discharged. He has continued to attend hospital for follow up treatment. 15. He also adopted as exhibits the documents listed in his list dated 14th July 2020. The documents were: 1). National identity card. 2). Medical report by Dr. Cyprianus Okothe Okere. 3). Receipt for medical report. 4). Police abstract. 5). P3 form. 6). Copy of records for motor vehicle registration number KCJ 371P. 7). Motor vehicle search receipt. 8). Copy of the respondent’s driving licence. 9). Copy of certificate of insurance for motor vehicle registration No. KCJ 371P. 10). Discharge summary from KNH. 11). Patient attendance card for KNH. 12). Consultation request from KNH. 13). Invoice for KShs 163,154/= from KNH. 14). Payment receipts for treatment expenses. 15). Individual Credit Undertaking Form from KNH. 16). Notice to sue under 3rd party to insurance. 17). Demand notice dated 4th May 2020. 16. He was then cross-examined by learned counsel for the appellants who did not have many issues to raise with him. The cross-examination basically reiterated the evidence tendered in chief. 17. DW 1, Richard Muloma Ombeva testified for the defence. He adopted his undated witness statement. His evidence was that he was the driver of the subject motor vehicle at the material time. He was driving in the middle lane on Moi Avenue and intended to branch off to Njugu lane where he was going to a car wash. There was the motor cycle registration number KMDE 189F being ridden on the extreme left lane parallel to his vehicle and heading in the same direction. He was driving slowly to join Njugu lane when a third party motor cycle rammed into his vehicle. The third party rider and his female pillion passenger crashed to the ground. As a result, the third party rider suffered injuries to his leg while the female pillion passenger was lucky to escape without any injury. They waited for police to attend to the scene. According to DW 1, the pillion (sic) rider failed to give way despite DW 1 having indicated to which direction he was turning. 18. There was not much elicited in cross-examination of DW 1 either. 19. Learned counsel for the appellants, in his submissions, outlined the issues for determination basically posing the grounds of appeal above as the issues. 20. 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 finding the appellants 100% liable. b. Whether the trial court erred in its award of general damages c. Whether the trial court erred in its award of special damages. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 3

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d. Whether the trial court failed to comply with Order 21 Rules 4 and 5 of the Civil Procedure Rules, 2010. e. Who should bear the costs of the suit? 21. Learned counsel submits that there was no evidence to support the allegation of contributory negligence against the respondent. That in contrast, the respondent gave evidence countering all the allegations raised by the appellants. Learned counsel has cited the case of Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR) on the issues of causation and contributory negligence where it was stated that the onus is upon the plaintiff to establish on a balance of probability a causal link between someone’s negligence and his injury 22. Learned counsel for the respondent submits that the court properly held that the 2nd appellant breached this duty of care towards the respondent and was the proximate cause of the accident. That therefore the trial magistrate correctly found that the appellants owed a duty of care to other road users. That the Traffic Act obligates drivers to drive with due care and attention for the safety of other road users. 23. He has cited the case of on contributory negligence, the court in Chemengen v Cheptot (Suing as the legal representative of the Estate of Mecca Jepkemei Too) [2022] KEHC 9902 (KLR) where the subject of contributory negligence is discussed thus. “ In Charlesworth and Percy on negligence twelfth edition 2010 at page 228 the learned authors stated as follows “The phrase “contributory negligence” is probably now too firmly established to be disregard, but unless properly understood is apt to be misleading. It implies solely to the conduct of a claimant. It means that there has been some act or omission on the claimant’s part which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence. For these purposes “negligence” is used in the sense of careless conduct rather than in its sense of breach of duty. It means “negligence materially contributing to the injury.’ The word “contributory” being regarded “as expressing something which is a direct cause of the accident’. It connotes a failure by the claimant to use reasonable care for the safety of either himself or his property, so that to some extent, he becomes blameworthy as the “author of his own wrong”. The difference in the meaning of “negligence” when applied to a claimant, on the one hand, and to a defendant, on the other, was pointed out by Lord Simon.” 24. The issue for determination from both the appellants’ and the respondent’s submissions can be summed up as, whether or not the learned trial magistrate acted on wrong principles in arriving at her impugned decision both on liability and assessment of damages. 25. 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 2nd appellant during the hearing. 26. Learned counsel for the appellants submits that the trial court failed to consider the testimony of DW 1 that he slowly turned to join Njugu lane when suddenly the third party motor cycle rammed into him. According to learned counsel, this evidence countered the respondent’s testimony. I am afraid to say from the outset that it did not. 27. The first issue is, who is this rider being referred to as, “third party.” If and I believe that evidence was referring to the respondent herein, then it was a wrong reference because the respondent in that case https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 4

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would be the second and not third party. A third party would imply a different party other than the respondent and the 2nd appellant who were involved in the accident. 28. I agree with the holding in the case cited by learned counsel for the appellants of Kamanduu Kaumba & another v Kingsway Motors [2020] KEHC 9850 (KLR) that the court considers whether the allegations in the plaint against the appellants were proved by evidence of the respondent. That is the import of section 107 of the Evidence Act (Cap. 80) Laws of Kenya. 29. The evidence by both parties on how they were placed on the road just before the accident is basically the same meaning they were in agreement save for the slight issue of which lane the vehicle was. They were both moving in the same direction. The road had multiple lanes and each of them was on a different lane. The respondent said the vehicle was on the extreme third lane while DW 1 said it was in the middle lane. All were agreed that the motor cyclist was on the left of the vehicle and both were moving in the same direction. 30. The respondent said that the vehicle turned suddenly without indication or warning and knocked him down. The 2nd appellant said that he turned slowly and the motor cycle rammed into his vehicle. 31. The issue then is, given that he was on the right lane on the road with respect to the motor cycle and he wanted to turn into Njugu lane on the left side where he agreed the rider was and that they were moving parallel to each other. Under any circumstances, it would mean that for the rider to ram into his vehicle, his vehicle had moved ahead of the motor cycle. Why would he do so? The answer must be that it was because he was in a rush to join Njugu lane and he failed to give head to the rider who was riding on the extreme left lane in the same direction. 32. DW 1’s evidence therefore corroborates the rider’s evidence that DW 1 was on the wrong by failing to wait for the rider to pass before he turned into Njugu lane whether he was driving slowly or he did so suddenly and without warning. I do not find that in those circumstances, he was driving slowly as he alleged. I find that he simply wanted to enter Njugu lane quickly ahead of the motor cycle that was passing but miscalculated the distance of the motor cycle which ended up ramming his vehicle. In that case, he was clearly to blame for the accident. 33. Contrary to the findings of the Court of Appeal in the case cited by the appellants of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) in this case the court was not faced with two conflicting versions of evidence but evidence of the respondent was supported by that of DW 1 on how the accident occurred. 34. 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. 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 was the 2nd appellant the driver who failed to observe his duty of care towards the respondent. That was the evidence that was adduced before the trial court. So, the court would not proceed to apportion liability when the evidence adduced was to the contrary. 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 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 5

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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.” 35. In the circumstances I find that there was no room for apportioning blame to the rider. He was on his correct lane. There is no indication that he was speeding. To the contrary the evidence by both the rider and the driver goes to show that the driver was rushing and therefore suddenly turned the vehicle to enter Njugu lane but failed to head the presence of the rider on the road thereby causing the rider to ram into his vehicle. 36. I am satisfied and find that even though she was very brief in her analysis of the circumstances causing the accident, the learned trial magistrate was correct in her conclusion that the 2nd appellant bore the entire blame for the accident and so 100% liability. The allegations of the rider contributing to the accident in the statement of defence were not supported by the evidence tendered at the hearing and the submission that liability be apportioned in the ratio of 50:50 has no basis at all. 37. 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. 38. In the case of Masembe v. Sugar Corporation and Another [2002] 2 EA 434, 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.” 39. Based on the law as enunciated in the above decision, I find no reason to fault the learned magistrate’s finding on liability and the same is affirmed. 40. On assessment of general damages, the injuries sustained by the respondent are not contested. They were; (i). fracture of the right fibula proximally, (ii). Right anterior leg degloving wound. 41. The injuries were confirmed by the medical report of Dr. Cyprianus Okoth Okere dated 5th May 2020. 42. On the evidence tendered, the learned trial magistrate awarded the plaintiff KShs 950,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellants to disturb that award. 43. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 6

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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.” 44. 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 on 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.” 45. The appellants contend that the award of general damages by the trial court was not within the range of awards made by other courts and that the trial court failed to state the basis of awarding the damages, the cases relied upon or the factors it took into account in assessing the damages awarded. That the trial court failed to take into account comparable awards for similar injuries. 46. The appellants cite the following cases as being relevant to the determination of quantum to be awarded to the respondent: a. Francis Ndungu Wambui v Purity wangui Gichobi ( 2019) eKLR, the court of Appeal reduced an award of ksh. 450,000 to ksh. 250,000 where the claimant had sustained deep lacerations on the medial side of the leg and degloving injury to the right thumb. b. Musembi & another v Mwai [2024] KEHC 8740 (KLR) the High Court reduced an award of Ksh.700,000/= by the lower court to KShs. 500,000/= for the Plaintiff who suffered the following injuries: i. Blunt head injury. ii. Traumatic brain injury. iii. Blunt chest injury. iv. Degloving injury/wound on the left forearm. v. Massive soft tissue with complete damage of left forearm muscles. a. Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR) where the 2nd respondent Gladys Nyakerario Omwancha sustained the following injuries: deep cut wound on the left ear lobe, tender left lateral chest wall, swollen and tender left arm, bruises on the left hand, swollen and tender left elbow, bruises on the left elbow, cut wound on the left foreleg, fracture of the left tibia and fibula and dislocation on the left hip joint. Dr Morebu concluded that she sustained multiple severe soft tissue injuries, fractures and dislocations which were in the process of healing. He assessed permanent disability at 30%. He expected recovery to take a long time. The High Court on appeal set aside the lower court award of KShs 1,000,000/ = general damages for pain, suffering and loss of amenities and substituted it with an award of KShs 450,000/=. b. Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR) the High Court reduced an award of KShs. 600,000 to KShs. 400,000/= where https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 7

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the respondent had sustained compound fractures of the tibia/fibula bones on the right leg, deep cut wound and tissue damage on the right leg, head injury with cut wound on the nose and blunt chest. 1. 2. On his part, the respondent prayed for an award of Kshs 1,500,000 but the trial court granted Kshs 950,000 instead which learned counsel supports in his submissions. He has cited the following cases: a. George William Awuor v Beryl Awuor Ochieng [2020] KEHC 1103 (KLR) where the respondent suffered fractures of the right femur and left tibia fibula. The doctor noted that the tibia fibula fractures were compound while the femur fracture was simple. It was also noted that the respondent’s right thigh had surgical scars and some bruising which had since healed but that the nail was still in situ and she would have to undergo surgery to remove the nail. The High Court on appeal revised the lower court award of KShs 2,000,000/ = general damages for pain, suffering and loss of amenities to KShs 1,200,000/ = with parties sharing contributory negligence in the ratio of 70:30. b. David Mutembei v Maurice Ochieng Odoyo [2019] KEHC 1435 (KLR) where the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia and was awarded general damages of Kshs. 1,600,000 by the lower court but had the same reduced on appeal to Kshs. 800,000. c. EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] KEHC 125 (KLR) the Plaintiff sustained a fracture of the right mid shaft femur with tibia fibular fracture and facial injuries with bruises. The High Court on appeal upheld the award of KShs. 800,000/= in general damages in 2018. 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.” 47. In the case of Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR) the High Court restated the principles for award of general damages thus: “ General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike (see Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR). I would https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 8

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also add what the Court of Appeal stated in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR that: “The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.” In reaching an appropriate award, the court ought to consider the value of the shilling and the state of the economy. The court should avoid astronomical awards but strive to ensure that the final award makes sense and fairly compensates the claimant (see Kigaraari v Aya [1982-88] 1 KAR 768; Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR and Jabane v Olenja [1986] KLR 661).” 48. I have read through the judgment of the learned trial magistrate and I agree with the submission by learned counsel for the appellants that the learned trial magistrate did not indicate the basis of her award of general damages and the charge that she plucked the award from the air is indefensible. I am persuaded to follow the decision of Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) that the court should be able to demonstrate how its orders were arrived at. 49. I therefore find that the award of damages was not based on any of the principles set out above. 50. I have considered the various cases cited by learned counsels. It is my view that the injuries sustained in the authorities cited by the appellants are more comparable to the injuries suffered by the respondent herein. I am satisfied and agree that the submission by counsel for the appellants that an award of KShs 500,000/= for the injuries sustained by the respondent herein is adequate compensation. I find the award of KShs 950,000/= made by the learned trial magistrate to be inordinately high as to represent an erroneous estimate. 51. Consequently, the trial court award of KShs 950,000/= is hereby set aside and substituted with an award of KShs 500,000/= general damages for pain, suffering and loss of amenities, 52. On special damages, I am satisfied that even in the absence of receipts for payment, the credit undertaking produced by the respondent from Kenyatta National Hospital where he received treatment and is duly signed and stamped by the institution and supported by the invoice for KShs. 163,154/= confirms that the services were extended on credit. He thus remains indebted to the hospital and the best this court can do is to ensure that this amount is paid directly to the hospital so as not to cause public institutions which are for the benefit of all not to collapse on the weight of debt when one receives compensation to settle the same. 53. I am therefore satisfied that the sum of KShs 163,154/= for the treatment at KNH and the receipts for KShs 6,000/= and KShs 550/= for the medical report and copy of records were properly proved as special damages payable and the learned trial magistrate was right to grant the same. 54. In the final analysis, I find that there are no sufficient grounds to upset the findings of the trial court on liability and special damages and the decision of the trial court on the same is affirmed. However, the award of quantum of general damages is set aside and substituted with an award of KShs 500,000/=. 55. Consequently, I find that the appeal succeeds only to the extend explained above. 56. Each party will bear its own costs. DELIVERED, DATED AND SIGNED ON THE VIRTUAL PLATFORM, TEAMS THIS 26TH DAY OF NOVEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 9

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ANDAYI W. F. JUDGE In the presence of: Atieno (Ms) for the Appellants. Mwangi (Ms) h/b for Muli for the Respondent. Ummu h/b for Amina: Court Assistant. ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18309/eng@2025-11-26 10

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