Daniel Kiseli Munyao v Becky Waithera Murage

3. c. The learned magistrate erred in law and fact in failing to appreciate and find that the respondent had not proved his case on a balance of probability against the Appellant. d. The learned magistrate erred in law and fact in failing to consider and appreciate the submissions and judicial authorities submitted by the parties on loss of dependency. e. The learned magistrate erred in law by applying the wrong principles in arriving at an award of general damages and thus giving an excessive award of Kshs.600,000.00 which was erroneous considering the injuries sustained, which did not include fractures of the bilateral maxillary and non-displaced fracture of the left occipital brow and/or a contusion of the left frontal lobe as indicated in the judgment. f. The learned magistrate erred in law and in fact by basing the awards on extraneous considerations and factors. The first three grounds are on the same issue of liability. The 4th ground is irrelevant and is consequently dismissed in limine. Pleadings 4. The respondent filed suit vide a plaint dated 21.04.2021. It is in respect of an accident on 24.02.2020 involving motor vehicle registration number KCE 915T along Eastern Bypass. The said motor vehicle is said to have collided with motor vehicle registration number KBT 822X. The Appellant was the owner of motor vehicle registration number KBT 822X. Particulars of negligence were pleaded. 5. The Respondent pleaded the following particulars of special damages: 6. 7. a. Medical legal report Ksh. 3,000/= b. Medical expenses Ksh. 177,323/= c. Copy of records Ksh. 550/= d. Total Ksh. 180,873/= The respondent pleaded the following as particulars of injuries: a. Head injury with loss of consciousness for 24 hours b. Deep cut on the right eye brow with profuse bleeding c. Bruises on the right upper limb and right lower back d. Soft tissue injury to the chest. The Appellant entered appearance and filed a defence denying the averments in the Plaint. They attributed liability to motor vehicle registration number KCE 915T and threatened to join its owner as a party. However, they failed to do so, rendering the pleadings on liability otiose. Evidence 8. PW1 was Dr. Japheth Amugaga testified that he examined the Respondent who was treated at KNH, Nairobi West and Mama Lucy Hospital. On cross examination, he stated that the prognosis was good and there was no incapacitation. 9. The Respondent testified as PW1. She relied on her witness statement and stated that she was injured in the accident. She stated that motor vehicle registration number KBT 822X was at a high speed. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 2

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said motor vehicle tried to overtake KCE 915 T. She reported the accident at Ruai Police Station and was issued with a medical report. She spent Ksh. 177,323/= for treatment. On cross examination, she testified that she was unconscious for 24 hours. She was also examined by another doctor. 10. PW3 was Sergeant Philip Kazungu of Ruai Police Station. He testified that there was an accident involving motor vehicle registration number KBT 822X and motor vehicle registration number KBT 822X. According to him, four passengers, including the Appellant, sustained serious injuries. He further stated that the accident occurred when the driver of a lorry, motor vehicle registration number KCT 822X, attempted to overtake, resulting in a head-on collision. 11. The Appellant closed their case without calling any additional witnesses. The parties subsequently filed written submissions, culminating in the judgment delivered herein. The Court then directed that the appeal proceed by way of written submissions. Submissions 12. The Appellant submitted that the conclusion by the court contradicts the law. They submitted that the police officer was not the investigating officer. Reliance was placed on the case of Kennedy Nyangoya v Bash Hauliers [2016] KEHC 2616 (KLR), where Njoki Mwangi, posited as follows: In this matter, a police abstract was produced by PW1 to show that DW1 was to blame for the accident. DW1 was however not charged with a traffic offence. PW1 in his evidence informed the court that he was not the Investigating Officer. In my considered view, his evidence did not assist in any way to build the plaintiff’s case. PW1 did not visit the scene of the accident or take any sketch plan or map of the area where the accident happened for production in court. Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it. Another shortcoming in the appellant's case was the unexplained failure to call the Driver who was driving the matatu at the time of the accident. The said Driver could have shed light on how the accident happened, thus assist the Court in determining who was liable for the said accident. 13. They further relied on the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR), where the court of appeal is said to have posited that the case must be dismissed even in absence of proof. The court of appeal in that case posited as doth: It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side. 14. They relied on the case of Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) to submit that the case against the Appellant was not proved: The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value and in absence of further evidence connecting it with what happened at the scene, the court could not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the Magistrate court reasonably make a finding that liability had been https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 3

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established on 100% basis as against the appellant. In fact, the Magistrate other than saying the appellant never adduced evidence, he never explained whether the evidence before him discharged the evidential burden of prove. 15. They further stated, that should the court find liability, it should hold 50:50. No basis was laid for this submission. 16. The appellant submitted that injuries suffered were soft tissue while the court relied on unsubstantiated evidence. They relied on the case of Mohamed Mahmoud Jabane V Highstone Butty Tongoi Olenja [1986] eKLR, where the court of appeal, Kneller, Hancox & Nyarangi JJA restated principles that govern award of damages. The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge: 1. Each case depends on its own facts; 2. Awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics); 3. Comparable injuries should attract comparable awards; 4. Inflation should be taken into account; and 5. Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone. See generally Butt v Khan (1982-88) 1 KAR 878, Hancox and Nyarangi JJA and Gachuhi Ag JA; Idi Ayub Omari Shabani and Yusuf Juma v City Council of Nairobi and Daniel Nachela Kahungu (1982-88) 1 KAR 681,Hancox and Nyarangi JJA and Platt Ag JA. 17. The Appellant submitted that a sum of Ksh 120,000/= was sufficient. Reliance was placed on the case of Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki [2018] KEHC 8799 (KLR) where a sum of Ksh 100,000/= was awarded for blunt injury; head concussion (brief loss of consciousness); blunt injuries to the chest and both hands. The Respondent experienced back pains and chest pains on exertion. 18. They relied on the case of Danimma Agencies Limited v Napa [2023] KEHC 25646 (KLR) where a sum of Ksh 120,000/= was awarded for lacerations on the scalp, bruises on both knees and bruises on both lower limbs. They concluded that the duty of the court was set out in the case of Charles Ogolla Obiero v Joseph Munyambu Karega [2017] KECA 623 (KLR), where the court indicated as follows: The learned Judge properly directed herself by referring to the case of Ephantus Mwangi and Another vs Duncan Mwangi Wambugu [1982-88] 1KAR 278, wherein it was stated that a Court of Appeal will not normally interfere with the finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of evidence or a trial court is shown demonstrably to have acted on wrong principles. 19. On the part of the Respondent, it was submitted that the decision was proper. They stated that the Appellant had proposed a sum of Ksh. 500,000/= in the lower court. It was their case that the injuries pleaded were proved. 20. On the aspect of PW3 not being an investigating officer, they stated that the evidence was not only that of the police officer. Reliance on the case of Kennedy Nyangoya v Bash Hauliers [2016] KEHC https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 4

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2616 (KLR) was misplaced. They posited that the Appellant did not tender evidence to be considered by the court. Analysis 21. 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. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: “ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 22. The duty of the first appellate court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held as follows;“ .. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 23. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 24. It is a strong thing for an appellate court to differ from the findings on a question of fact of the magistrate who had the advantage of seeing and hearing the witnesses. In the case 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…” 25. The burden was on the respondent to prove her case. On this subject, Section 107-109 of the Evidence Act, Cap 80 Laws of Kenya provides that: “ 107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) 108. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 5

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109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 26. There was no appeal on special damages. This will thus not concern the court. 27. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows: “ 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 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.” 28. This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR), where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows: The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. 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 the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 29. The appellant did not testify hence did not rebut the respondent’s case. The respondent was still bound to prove her case even where no evidence was tendered. In the case of Peri Formwork Scaffolding v White Lotus Projects Limited [2021] eKLR, the court stated as follows: In Rosaline Mary Kahumbu v National Bank of Kenya Ltd [2014] eKLR, the Court held: In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits. 8. In this regard, in a formal proof hearing, a party with the onus of adducing evidence must produce such sufficient evidence which must satisfy the court as to its truth. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 6

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30. The duty to prove in formal proof was stated by justice J. B. Havelock in the case of Rosaline Mary Kahumbu v National Bank of Kenya Ltd [2014] eKLR: “ In light of the absence of a Defence on the file, it follows logically, that the matter would proceed to formal proof. What therefore is hearing by formal proof? In the case of Samson S. Maitai & Another v African Safari Club Ltd & Another [2010] eKLR, Emukule, J observed thus; “……. I have not seen judicial definition of the phrase "Formal Proof". "Formal" in its ordinary Dictionary meanings - refers to being "methodical" according to rules (of evidence). On the other hand according to Halsbury's Laws of England, Vol. 15, para, 260, "proof" is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.” Can hearing, therefore, by formal proof, be similar to a full hearing? According to the observations of Emukule, J, in a formal hearing, all rules of evidence and procedure are observed and the party to a suit has to adduce evidence sufficient to sustain the suit. In adducing this evidence, the party has to raise a presumption that whatever is claimed is true and this therefore goes to the merits of the case. The Court considering a full hearing, to determine the matter based on the evidence that is presented before it by the parties. In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits.” 31. The court will make an adverse inference when a party fails to call evidence they have. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, justice Odunga J as he then was stated as doth: “ Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows: “Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’ Where a party has custody or is in control of evidence that that party fails or refuses to tender or produce, the court is entitled to make an adverse inference that if such evidence was produced, it would be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 7

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adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 32. What is the effect of failure by the appellant to tender evidence in rebuttal? In the case of Leo Investment Limited v Mau West Limited & another [2019] eKLR Justice C Kariuki, J, stated as doth: “ But what are the effect of failure by the appellant to tender evidence in rebuttal? The court in Shaneebal Limited vs County Government of Machakos [2018] eKLR (supra) addressed this issue in paragraphs 24 to 29 and while citing other case laws it held that where no defence is filed but no witness is called to give evidence in support of the defence, it means that the defence renders the plaintiff’s case unchallenged. 39. 33. The evidence reached a prima facie standard and is now uncontroverted. The Respondent tendered evidence on how the accident occurred. The police officer indicated what the police records indicate. The driver, who was the other party to the accident decided not to testify. Failure to testify leads the court to make an adverse inference. However, I am equally persuaded by the reasoning of Odunga, J as he then was in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR where the learned judge stated as follows: 53. 34. That where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.” In this case the only people who could have explained the circumstances under which the accident occurred were Musyoka Mutiso who was ahead of the deceased, PW2 and the Appellant. PW2 gave evidence that tended to show that the accident was caused by the negligence of the Appellant while Musyoka Mutiso was not called to testify. In those circumstances one would have expected the Appellant to testify in order to controvert the evidence of PW2 but he chose not to do so. Accordingly, I find that not only was the evidence of PW2 uncontroverted but the conduct of the Appellant invited the inference that his evidence, had he testified, would have been adverse to his case as pleaded. Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice G V Odunga as then he was, stated as doth: “ In my view, the fact that the document in question was authored by the Appellant’s agent and was produced by consent of the parties themselves entitled the learned trial magistrate to rely on it. The Court of Appeal in Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 had this to say on the issue: “Where documents are put in by consent, as for example an agreed bundle of correspondence, the usual agreement is that they are admitted to be what they purport to be (so as to save the necessity for formal proof of each document).” 41. Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 8

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be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows: “Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 35. Failure by the Appellant to testify only means one thing, had the Appellant or his driver testified, the evidence would have been adverse to him. Then, what was the evidence they were to tender? Evidence can only be tendered in support of pleadings. In this case, it was the Appellant’s pleadings that motor vehicle registration number KCE 915T was to blame. They had indicated that they were to join its owner as a party. They did not join the same. There was no contributory evidence attributed to the Respondent who was a passenger. 36. Parties are bound to plead their cases fully. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth: “ 11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: “…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 9

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which is at variance with the averments of the pleadings goes to no issue and must be disregarded…… …In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 37. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.” 38. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: “ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’” 39. The case of Kennedy Nyangoya v Bash Hauliers [2016] KEHC 2616 (KLR) does not apply to this case, since there was defence evidence tendered. Further, there was eye witness evidence from the Respondent, which was not rebutted. The court is bound to dismiss the appeal on liability. First, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 10

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court cannot find a non-party liable for an accident. In the case of Kinyua v Murage (Civil Appeal E016 of 2023) [2024] KEHC 7882 (KLR) (11 June 2024) (Judgment), this court posited as follows: The respondent was blaming the driver who was not party to the suit. The court cannot apportion liability between parties who were not party to the suit. The rider was not joined and as such I cannot apportion liability. The evidence led showed the respondent was to blame. Had he thought for once that the Rider is to blame, he ought to have done one of the following: a. Join the rider as a party, and b. Plead and prove the rider was to blame. 40. The joinder of the owner of motor vehicle registration number KCE 915T did not happen. Consequently, they cannot be held liable or liability apportioned to them. 41. Secondly, the particulars of contributory negligence were not proved. They were pleaded but remained bare. The appellant had a duty to render evidence to prove contributory negligence. 42. Where the respondent proved her case to the required standard, it was the duty of the Appellant to prove contributory negligence which in my view he failed. In the case of Mac Drugall 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”. 43. In the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR 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.” 44. In the circumstances, the appeal on liability lacks merit. It is accordingly dismissed. 45. On quantum the appellant posited that a sum of Ksh 120,000/= will suffice. In the lower court, the appellant submitted that a sum of Ksh. 500,000/= will suffice. They relied in the cases of Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR and Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] eKLR. In both cases a sum of Ksh 500,000/= was awarded. In the first case, the injuries were depressed frontal bone fracture of the skull, severe tissue injuries in the face, soft https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 11

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tissue injury of the chest, soft tissue injury of both knees, soft tissue injury of both hip joints and severe soft tissue injury of the toes of the right leg. In the latter case, the claimant suffered head injury with loss of consciousness, fracture of the right zygoma (facial bone), multiple facial lacerations, blunt injury to the shoulders and blunt injury and bruises to both lower limbs. 46. The Respondent proposed a sum of Ksh 700,000/= in the lower court. 47. The medical report showed, pleural fluid in the right posterobsal aspect. The head injury was described as a non-displaced fractures of the anterior and posterolateral wall of the maxillary sinus. The Respondent was left with frequent headaches and ugly keloid scars on the upper limb. The keloid formation was also on the right lower back. The injuries are serious. 48. Circumstances in which an appellate court will interfere with the quantum of damages awarded by a trial court were clearly laid out in the case of Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows: “ …in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.” 49. The principles guiding this court as the first appellate court have crystalized. This is in recognition that the award of damages in discretionary. The Court of Appeal pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR as follows: 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 that 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. 50. In this case parties were in agreement from the lower court on the nature and effect of the injuries. I find no merit in the appeal on quantum. The appeal is dismissed. 51. The next issue is costs. costs are governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 12

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(2) 52. The court or judge may give interest on costs at any rate not exceeding fourteen percent per annum, and such interest shall be added to the costs and shall be recoverable as such. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 53. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: “ (18) 54. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The appellant has lost the appeal. The Respondent is entitled to costs, so the appeal is dismissed with costs of Ksh 75 000/=. Determination 55. In the upshot, I make the following orders: a. The appeal is dismissed with costs of Ksh 75,000/=. b. 30 days stay of execution. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 11TH DAY OF JUNE, 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Aluvidza for the Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 13

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Mr. Kimani for the Respondent Court Assistant – Jedidah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19349/eng@2025-06-11 14

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