John Waluke v George Bwanya

The Respondent’s Case: 5. It is his case that on the date when the accident occurred, he was walking along Ngong road near Ngong Hills Hotel when the motor vehicle registration of KBT 414E which was being negligently being driven by the Appellant, caused the accident as a result of which he him to sustain the injuries as set out in the medical records. 6. Subsequently he reported the accident to the police where he was issued with a police abstract, which he produced as evidence in court. 7. He went to hospital where he was treated and given treatment documents, which he also produced as evidence in the trial court. 8. After full trial court delivered a judgment finding the Appellant 100% liable for the accident and awarded the Respondent the sum of Kshs. 1,000,000 plus costs and special damages. Analysis and determination; The court has looked at the record of appeal, the Memorandum of Appeal and the rival submissions and formed the opinion that the issues for determination are: 1. Whether or not the appeal has merit. 2. Who shall bear the costs? 9. Being a first appeal, this court has the power to relooked at and analyze the evidence and the case that was before the trial court, and arrived at its own finding. 10. This must however, be done within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. Whether or not the appeal has merit: 11. Every driver of a motor vehicle is under duty to protect all road users, including pedestrians so as not to harm them with the motor vehicles that they are driving. 12. In all motor vehicle accident related cases, the person moving the court and in this case the Respondent herein has to plead negligence. This was done in the particulars of negligence as pleaded in the plaint. 13. In the instant suit, the respondent was also under a duty to prove that the appellant was negligent when the accident occurred. 14. In arriving at this finding, the court has looked at the evidence as tendered by Respondent and that of the police officer who confirmed that an accident occurred as set out in the police abstract. 15. The appellant does not deny owning the motor vehicle that is said to have caused the accident. The court also notes that the Appellant does not tell the court where his motor vehicle was at the time and date when the accident occurred. 16. The court has arrived at a conclusion that the appellant left the scene after the accident and failed to report to the police that an accident occurred. This court is satisfied from the conduct of the appellant that he was running away from liability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19317/eng@2025-12-16 2

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17. Section 73 (1) of the Traffic Act stipulates that if, in any case, owing to the presence of a motor vehicle on a road, an accident occurs whereby injury or damage is caused to any person, vehicle, dog or cattle, the driver of the motor vehicle shall stop, and if required to do so by any person having reasonable grounds for so requiring give his name and address, and also the name and address of the owner and the identification marks of the vehicle. (2) Any other person in the vehicle at the time of the accident shall also, if required to do so, give his name and address. (3) If in the case of any such accident as aforesaid the driver of the motor vehicle for any reason does not give his name and address to any such person as aforesaid, or if any injury has been caused to any person, dog or cattle, the driver shall report the accident at a police station or to a police officer as soon as reasonably possible, and in any case within twenty- four hours of the occurrence thereof. (4) The owner of a motor vehicle shall supply the police with all information necessary for the identification of a driver involved in an accident. 18. The Appellant acted contrary to Section 73 of the Traffic Act in that he did not report the accident. He moved on as if there was no accident that had occurred. 19. This court is guided by the case of William Kabogo Gitau V George Thuo & 2 Others [2010] Kehc 4124 (KLR), where the court 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 is more likely than 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 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.” 20. In Civil Appeal No. E064 of 2022 Esther Wamuyu v Grace Wangari Mwangi (2024) KEHC, the court pronounced itself as such; “ From the fact that the pedestrian was at the scene of the accident when on the material day of the accident and given that the motor vehicle that caused the accident was placed at the scene of accident through the police abstract the only logical conclusion on a balance of probabilities is that indeed that an accident occurred and that the appellant caused the accident.” 21. The Appellant did not tender any evidence to prove contributory negligence on the part of the Respondent. 22. It is this court’s finding that the trial court did not fall into error in determining the issue of liability. 23. This court is satisfied that the appellant owed a duty of care to the Respondent and the court is satisfied that the appellant breached the duty of care causing the injuries that the Respondent sustained. 24. The court is not convinced the claim is predicated on fraud. The appellant has failed to prove that the accident was a fraud. 25. Having sorted out the issue of liability, the court now looks at the question of the quantum of general damages as awarded by the trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19317/eng@2025-12-16 3

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26. Ordinarily, the court will be reluctant to set aside the amount awarded as general damages, unless there is sufficient justification. 27. From the medical report, P3, the medical reports and the treatment notes the court confirms that the Respondent proved that he sustained the injuries as pleaded. 28. From the authorities that were cited by parties, the court is satisfied that the amount awarded as general damages is commensurate to the injuries that the respondent sustained. Costs: 29. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed: “ …whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 30. In the instant appeal of the appellant shall shoulder, the costs of the appeal and I so hold. Determination: 31. The appeal lacks merit. Order; The appeal is dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER, 2025. ……………………………….. J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19317/eng@2025-12-16 4

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